Last summer two gun ranges in California filed a lawsuit aimed at taking down California’s 11% excise tax on the sale of firearms and ammunition, arguing that the tax is an ahistorical regulation on the right to keep and bear arms, as well as in conflict with Supreme Court decisions like Murdock v. Pennsylvania, where the Court has held that constitutional rights cannot be singled out for special taxation.
Poway Weapons and Gear and their co-plaintiff Sacramento Gun Range are represented by Michel and Associations, headed up by California Rifle and Pistol Association president and general counsel Chuck Michel, as well as Cooper & Kirk, which has extensive experience in litigating Second Amendment cases.
The lawsuit has been moving pretty slowly, but this week the plaintiffs filed their request for summary judgment, asking the federal judge overseeing the case to side with the plaintiffs without the need for a full trial.
Applying the Supreme Court’s two-part test here, the State’s 11% excise tax on firearmsand ammunition implicates the Second Amendment’s plain text because it implicates conduct protected by the Second Amendment’s plain text—the acquisition of protected firearms and ammunition. Defendants do not attempt to meet their burden under the historical part of the Bruen inquiry. Rather, they attempt to argue that the Second Amendment simply has nothing to say about a state excise tax on the sale of all firearms, firearm parts, and ammunition, and therefore that Plaintiffs’ challenge fails the first part of Bruen. That is mistaken.
Defendants’ highly circumscribed characterization of the rights and attendant conduct protected by the Second Amendment is wrong. “Constitutional rights … implicitly protect those closely related acts necessary to their exercise.” Luis v. United States, 578 U.S. 5, 26 (2016) (Thomas, J., concurring in judgment). The Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.” Heller, 554 U.S. at 592. To do either of these things, it is necessary that a person first be able to acquire a firearm. Because the right to keep and bear arms “wouldn’t mean much without the ability to acquire arms,” Nguyen v. Bonta, 140 F.4th1237, 1241 (9th Cir. 2025) (cleaned up), the Second Amendment covers the right to purchase them. In other words, just as “the First Amendment right to speak would be largely ineffective if itdid not include the right to engage in financial transactions that are the incidents of its exercise,”the Second Amendment “right to keep and bear arms . . . . would be toothless” “[w]ithout protection for [the] closely related rights” of acquiring firearms and ammunition. Luis, 578 U.S. at26–27 (Thomas, J., concurring in judgment) (cleaned up).
California Attorney General Rob Bonta has tried to shoot down the lawsuit by arguing that there is no Second Amendment right to sell a firearm without having a tax imposed, and that the tax doesn’t impose a meaningful constraint on the right to keep and bear arms. As the plaintiffs pointed out in their most recent filing though, the question isn’t whether FFLs have the right to sell firearms without being taxed. It’s whether gun buyers can be forced to pay a special tax on firearms and ammunition without implicating the Second Amendment.
Now, it’s true that it’s the sellers of firearms and ammunition, not their customers, who have filed this complaint. But the plaintiffs note that under existing precedent, “vendors and those in like positions have been uniformly permitted to resist effortsat restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” That means a gun store operator can “assert the subsidiary right to acquire arms on behalf of his potential customers” without running into any issues of standing.
The plaintiffs argue that if California’s 11% tax is upheld, there’s nothing to prevent the state from imposing a 50%, 100%, or even a 1000% tax on these products, even if those taxes are clearly meant to prevent the lawful acquisition of firearms and ammunition. They point to a series of Supreme Court decisions voiding special taxes on constitutionally-protected activities, and counter the state’s claim that the 11% excise tax on arms and ammunition imposed by the federal government means California’s tax is constitutionally kosher by noting that there were no federal firearm taxes before the 20th Century, “so they all come too late to establish a tradition of regulation under Bruen.”
Since California imposed its tax, other states have followed suit. Colorado has a 6.5% excise tax on guns and ammunition, while Maryland, Massachusetts, New York, Virginia, and Washington have all seen bills introduced that would create new excise taxes. Poway Weapons and Gear has the potential to stop those proposed taxes before they’re put into place, and to wipe California and Colorado’s taxes off the books. The litigation is still in its early stages, but if the district court grants the plaintiffs’ request for summary judgment relatively quickly, we could see this issue get to SCOTUS within the next couple of years.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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