Starting today it’s a little more expensive for Coloradans to exercise their right to keep and bear arms. A voter-approved excise tax on firearms and ammunition will raise the cost of those products by 6.5%, with the money generated by the tax supposedly going to pay for things like school security and mental health resources. 

There’s nothing wrong with those things, of course. I’m a big believer in both secure schools and a strong mental health system. But why are gun owners being singled out to pay for these things when they’re a matter of statewide concern for every resident? 

A coalition of 2A groups including the NRA, Second Amendment Foundation, Firearms Policy Coalition, Colorado Shootings Sports Association, and several individual plaintiffs are now suing the state over the new Second Amendment sin tax, arguing in their complaint that the excise tax is unconstitutional under the Bruen, because it “implicates conduct protected by the Second Amendment’s plain text by adding to the cost of acquiring a firearm” while being wholly “unsupported by this country’s history and tradition of firearm regulation.”

The United States Supreme Court has repeatedly held in various contexts that the exercise of a constitutional right cannot be singled out for special taxation. See, e.g.,Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943); Harper v. Va. Bd. of Elections, 383 U.S. 663,668 (1966); Minneapolis Star & Trib. Co. v. Minn. Comm’r of Rev., 460 U.S. 575, 591 (1983). Colorado’s excise tax singles out the exercise of Second Amendment rights for special, disfavored treatment. Because the Second Amendment is “not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees[,]’” Bruen, 597U.S. at 70 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010)), these precedents independently bar Colorado’s infringement-by-taxation scheme. 

As the Supreme Court cautioned: a “right to tax, without limit or control, is essentially a power to destroy.” McCulloch v. Maryland, 17 U.S. 316, 391 (1819). And Colorado’s governor has acknowledged that the obvious and intended effect of targeted taxes like this one is to discriminate against and disincentivize the taxed activity: “[W]hen you tax something, you penalize it. And there’s things you actually want to penalize in society.” John LaConte, Polis, in Beaver Creek, says state income tax should be zero, STEAMBOAT PILOT & TODAY(Aug. 31, 2021), https://perma.cc/TM8C-6T9T. 

Here, Colorado seeks to penalize the exercise of the right to keep and bear arms and expose it to this destructive taxation power. If this tax is permitted, there is nothing stopping States from imposing 50% or even 100% taxes on the exercise of any constitutional rights they disfavor—whether it be the right to free exercise of religion, the right to free speech, or any other protected individual right. Moreover, calling upon the courts to decide how much tax is too much would be an exercise in arbitrary line-drawing. The only rule that accords with Supreme Court precedent and common sense is that the exercise of protected constitutional rights cannot be singled out for special taxation.

The legislators who approved the tax and sent to the voters for their sign-off estimate $39 million will be raised annually. If that money was generated by a tax on all adult Coloradans it would come out to a little more than ten bucks a year, but lawmakers intentionally chose to single out gun owners instead, forcing them to unfairly shoulder the financial burden of paying for security measures and mental health resources that will benefit plenty of Coloradans who don’t own guns. 

In all honesty, I’d be shocked if the state actually meets their estimate. Many residents living near the Colorado border will undoubtably decide to buy their guns and ammunition in neighboring states like Wyoming, Kansas, Utah, and New Mexico instead of paying the Second Amendment sin tax foisted on them by the legislature and 54% of voters. That means the tax burden is going to fall even more disproportionately on gun owners in places like Denver and Colorado Springs, along with Rocky Mountain communities like Gunnison, Aspen, and Crested Butte; where a relatively quick drive down I-25 or I-70 will bring them to a gun shop in a much more 2A-friendly environment. 

The plaintiffs in Langston v. Humphreys are seeking to overturn the tax completely, but in the short term they’re asking for an emergency injunction that will halt the collection of the excise tax while the litigation proceeds. Given the immediate impact on both gun buyers and sellers in the state, I’d say the harm done by the Second Amendment sin tax is enough to justify an injunction, but whether or not the federal judge assigned to the case will agree remains to be seen.