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The Second Amendment, Taxes, and Gun Control

Posted on Nov. 8, 2021
Roxanne Bland
Roxanne Bland

Roxanne Bland is Tax Notes State’s contributing editor. Before joining Tax Analysts, Bland spent 17 years with the Multistate Tax Commission, where she worked with state revenue agency representatives to draft model legislation pertaining to sales and use taxation and corporate income, analyzed and reported on proposed federal legislative initiatives affecting state taxation, worked with legislative consultants and representatives from other state organizations on international issues affecting states, and assisted member state representatives in federal lobbying efforts. Before that, she was an attorney with the Federation of Tax Administrators for over seven years.

In this installment of The SALT Box, Bland examines efforts states and localities could make to help increase gun control without infringing on the Second Amendment and citizens’ right to own firearms.

Americans may be divided over the necessity and efficacy of gun control, but it is hard for anyone to deny that the healthcare costs for victims of gun violence are substantial. State and local governments must spend a significant amount of tax dollars for law enforcement, ambulance services, and more, which can cut deeply into the budget and leave less money for other important government services. When a state or locality proposes a new tax on firearms and ammunition to recoup some of the costs resulting from gun violence, the opposition argues the measure constitutes a violation of the Second Amendment. The question is whether that is true. According to a report by the Government Accountability Office1 released in June, the initial hospital costs for those who suffered a firearm injury topped $1 billion in 2019. Fifty percent of those costs, the GAO reported, were borne by Medicaid. Yet the initial hospital costs for shooting victims are not the entire story. The report acknowledges that the costs increase when other, external expenses associated with firearm injuries are accounted for; however, data on these additional costs were unavailable. The report identifies such costs to include physician fees for inpatient care, which are billed separately from hospital charges, and the costs associated with post-discharge care. These include behavioral health services for victims and those affected by the incident, including family members and other witnesses; skilled nursing facilities or home healthcare for victims; rehabilitation services; durable medical equipment for victims requiring wheelchairs or prosthetics; and other long-term services such as personal care attendants. Although the data are unavailable, it is probably safe to assume that the lion’s share of these costs are also borne by Medicaid.

The Second Amendment Isn’t All That

Interestingly, although ownership of firearms is considered a fundamental right by virtue of the Second Amendment, the right is not one, if taxed or regulated, that triggers strict scrutiny, such as marriage and voting. The U.S. Supreme Court’s Heller2 decision definitively established what the Second Amendment’s right “to keep and bear arms” means — the right of an eligible person to own a firearm to protect one’s home and for self-defense. Thus, the Heller Court struck down a District of Columbia gun regulation that prohibited an otherwise law-abiding gun owner from keeping an operable weapon in his home for defense of his dwelling and person. However, the Court cautioned, like all other rights, the Second Amendment has its limits. As explained by a long line of court cases and legal commentators stretching back to the founding, the Court said the right guaranteed does not extend to the “right to keep and carry any weapon whatsoever in any manner whatsoever, and for whatever purpose,”3 noting that courts in the 19th century routinely upheld state laws prohibiting the carrying of concealed weapons against challenges brought under the Second Amendment or its state analogues. “Long-standing” regulatory prohibitions, the Court continued, are “presumptively lawful,” such as on the possession of firearms by felons or the insane, laws that forbid guns in schools or government buildings, and laws imposing “conditions and qualifications” for commercial sale.

Long-standing taxes imposed on firearms and ammunition are not treated any differently than regulations. The federal government has taxed the sale of guns and ammunition by manufacturers, producers, and importers since 1919, a fact that remains true to this day.4 The proceeds from the tax — levied at 10 percent on handguns and 11 percent for long guns and ammunition — have supported state wildlife and restoration efforts since 1937.5 The National Firearms Act, adopted in 1934, taxed the transfer of machine guns, silencers, and sawed-off shotguns, the type of weapons favored by organized crime.6 State tax laws on firearms and ammunition are even older. Starting from the mid-19th century, at least nine states and territories have levied taxes on people who possessed, carried, or used firearms.7 A few states granted exemptions from the tax, such as for military weapons,8 and one state imposed the tax incrementally, granting an exemption on a person’s first three guns and taxing each additional gun owned.9 Proceeds from these taxes were put to various uses, including to fund county departments and infrastructure, or deposited into the general fund.10 Other states levied taxes on ammunition manufacturers and sellers, which were put to similar uses. Since 1937 Tennessee’s privilege tax on ammunition, paid by distributors and sellers, is deposited into a dedicated fund for wildlife management.11

Is a Solution at Hand?

The Second Amendment does not bar states and localities from imposing taxes on firearms and ammunition, provided the tax is not so high as to put gun ownership out of the reach of the ordinary consumer, thereby burdening gun ownership and infringing on the rights contemplated by the Second Amendment. Yet there is, or should be, more effort put into the goal of defraying the costs of gun violence. Taxing firearms at a flat rate may help states and localities cope with the astronomical healthcare expenses for gunshot victims, but it would probably not do much to reduce gun violence. For that, what is needed is a change in the behavior of gun owners. Gun control regulation could influence behavior, but taking that route is akin to attempting to stay on the back of an angry bull. The easier and probably more effective way to change behavior is through a carefully crafted tax structure. There is nothing novel in using the tax code to influence taxpayer behavior. For example, a state may encourage consumers in the market for a new car to purchase an electric instead of a gas model by giving shoppers a generous tax incentive for doing so. Moreover, the revenue from taxing firearms has been used for close to a century to pay for conservation efforts, so why shouldn’t the revenue from such taxes be used to protect people? Considering the Second Amendment is no bar to taxing firearms, a properly structured tax would be a much more effective method for controlling the availability of select types of guns, including assault weapons, simply by raising the cost of ownership. In other words, this route would silence gun control opponents who use the Second Amendment as a shield against reform. Using the tax code could shift the argument from one of a violation of rights to one that protects gun owners’ rights while lowering the negative costs gun ownership imposes on the rest of society.

A tax on guns could reward responsible owners by giving tax deductions for responsible efforts, including owners who participate in gun safety classes, purchase gun safes for their homes, or store their weapons at a federally licensed firing range. Further, mass shootings tend to be carried out by shooters that own an arsenal of guns, and an excise tax could be structured to alleviate concerns to some extent. The instances of a single individual accumulating many weapons could be reduced by making the first purchase of a gun tax free and then imposing an incremental tax on subsequent purchases. However, the increase would have to be substantial, perhaps in increments of 10 percent per weapon. Under such an approach, by the time a buyer reaches a certain number of purchases, the amount of tax could potentially reach at least one-half of the firearm’s value. Levying incremental taxes does not prohibit anyone from building an arsenal, but it certainly makes it more expensive to do so. To carry this out, all gun sellers, including those at gun shows, would be required to issue and record an official certificate of title for each purchase, thereby making it easier to track the number of weapons a person owns. These are not the only ways an excise tax can be structured; the point is to show that there are several routes available to lawmakers to do so.


The Second Amendment is the Constitution’s ironclad guarantee to the people of the right to own firearms without interference from the federal government or states. However, according to a recent report from a federal agency, the rise in firearm ownership is costing states and localities millions in dealing with the consequences, including caring for gun victims and persons associated with them, even those who only may be witnesses to the shooting. Thus far, the debate over gun control has centered on regulatory measures, which has vehement opposition. Yet it is possible that gun control — that is, influencing gun owners’ behavior — can be achieved through the tax code, a means that has rarely been discussed. Considering that gun ownership in America has risen sharply in the past few years, perhaps it is time to change tactics and give the tax code a try.


2 District of Columbia v. Heller, 554 U.S. 70 (2008).

3 Id.

4 26 U.S.C. section 4181.

5 16 U.S.C. section 699.

6 26 U.S.C. sections 5801-5872.

7 Hannah E. Shearer and Allison S. Anderman, “Analyzing Gun-Violence-Prevention Taxes Under Emerging Firearm Fee Jurisprudence,” S. Ill. L. J. 2018. These states are Mississippi (1844), North Carolina (1857), Georgia (1866), Alabama (1867), Hawaii (1870), Nebraska (1895), Florida (1898), and Virginia (1926).

8 Id., Mississippi, North Carolina.

9 Id., Georgia.

10 Id.

11 Id.


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