Gun rights groups sue over new state firearms excise tax

Gun advocates are challenging California’s new 11% excise tax on manufacturers and sellers of guns and ammunition, arguing it “impermissibly singles out constitutional rights for special taxation” and violates Supreme Court restrictions on government regulation of firearms.

AB28 by Assembly Member Jesse Gabriel, DEncino (Los Angeles County), passed last year and took effect Monday. It is intended to raise $159 million a year for programs to prevent gun violence, promote mental health and safety in schools, remove guns from domestic abusers and others legally barred from owning them, and find research on prevention of gun suicides.

The federal government has imposed excise taxes of 10% to 11% on sellers of guns and ammunition since 1919 and used the revenue for wildlife conservation programs and research. The California tax adds another 11% and, like the federal tax, is imposed directly on gunmakers and dealers but can be passed along to customers.

The lawsuit was filed Tuesday in San Diego County Superior Court by organizations including the Second Amendment Foundation, the Firearms Policy Coalition and the National Rifle Association.

Their lawyers contend the state, by making guns and ammunition much more expensive, is depriving law-abiding Californians of their right to defend themselves.

AB28 gives California “the power to destroy the exercise of a right protected by the Constitution by singling it out for special taxation,” Adam Kraut, executive director of the Second Amendment Foundation, said in a statement announcing the suit.

Supporters of the tax said during debate over the bill that the state is entitled to make the gun industry pay for programs that address the causes and effects of gun violence.

“Since the start of the pandemic, our nation has seen record-setting gun and ammunition sales, alongside record nationwide increases in shootings, homicides and related traumas,” the Family Violence Law Center told a legislative committee last fall.

The deciding legal issue, however, appears to be whether such a tax is part of the nation’s history of gun regulation. That was the standard declared by Justice Clarence Thomas in New York State Rifle & Pistol Association v. Bruen, a 2022 ruling that declared a constitutional right to carry concealed firearms outside the home.

Lower courts have since cited Bruen in rulings overturning other gun laws. The Supreme Court may have modified its standards, however, when it ruled last month, over a lone dissent by Thomas, that the government could deny gun ownership to domestic abusers who have attacked or threatened someone in their household.

The new lawsuit said California’s tax “implicates conduct protected by the Second Amendment’s plain text — acquiring firearms and ammunition — and is not part of this Nation’s history of gun regulation.”

It did not mention the similar federal tax that has been in effect for 105 years. The Family Violence Law Center, in its statement to a legislative committee, said the National Rifle Association had described the federal tax as a “legislative model” and a “friend of the hunter.”