Their latest idea is to make firearms prohibitively expensive through taxation — but this would be unconstitutional.
Their latest idea is to make firearms prohibitively expensive through taxation — but this would be unconstitutional.
I n the Financial Times, Gillian Tett offers up what she apparently believes to be a spiffing new idea for circumventing the protections of the Second Amendment and reducing the number of firearms in private hands to a level that she thinks would be more acceptable.
“Searching for something to break the gridlock can feel hopeless,” Tett writes, especially when gun-control remains “anathema to many Republicans, who control the House of Representatives.” But despair not, for she has a cunning plan: Instead of waiting for legislators to impose the panoply of draconian restrictions that she covets, all Congress needs to do is price prospective gun-owners out of the market. “It’s time for a serious tax on guns in America,” Tett submits. “New research suggests first-time gun buyers are sensitive to price. Policymakers should take note.”
Oh, Lord, not this again.
To her credit, Tett is admirably open about her intentions. (We’ll call her ploy “Tett’s Offensive.”) “Instead of presenting the policy choices purely in terms of constitutional law, safety or human rights,” she recommends that gun-control activists “invoke some dry economic analysis instead.” But, of course, this makes no sense. As a rhetorical matter, Tett is free to focus on whichever element of the question she believes will gain the most purchase within the debate. But she should not delude herself into thinking that, by ignoring the constitutional problems with her proposal, she has any chance whatsoever of fooling others. Naturally, it is impossible to “present the policy choices” that relate to the Second Amendment outside of the realm of “constitutional law” when the “policy choices” that relate to the Second Amendment are firmly within the realm of “constitutional law.” Illegal restrictions on rights do not cease to be illegal restrictions on rights simply because those restrictions are economic in nature.
Tett’s aim here — her explicitly stated aim — is to reduce the number of Americans who possess guns by making it more expensive for those Americans to purchase them. And that, quite obviously, is unconstitutional. If the Supreme Court were to be presented with a statute that had been contrived to prevent price-sensitive, first-time newspaper buyers from subscribing to the Financial Times, it would strike that statute down in ten seconds on the grounds that it violated the First Amendment. Why Tett thinks the result would be different in a Second Amendment context is unclear.
If she doubts this, I would invite Tett to read the majority opinion in last year’s Bruen decision — which, among other things, held that the Second Amendment is not a “second-class right”; that Congress and the states are constitutionally barred from creating regulatory regimes in which some Americans’ Second Amendment rights are abridged or delayed; and that smokescreens involving “lengthy wait times,” “exorbitant fees,” or other impediments are presumptively illegal. At root, Bruen was an equal-protection case, which matters, because, whether she knows it or not, it is equal protection at which Tett is taking square aim. Tett writes that “new research suggests first-time gun buyers are sensitive to price.” What she means is that new research suggests poor first-time gun buyers are sensitive to price. If, as Tett proposes, Congress were to “to double, triple or quintuple” the tax on firearms, the result would be higher prices for Americans who could still afford guns, and a larger-than-before contingent of Americans who could not. There are many nuances within our 21st century Bill of Rights jurisprudence, but there is no circumstance in which brazen attempts to price out the poor are likely to survive a legal challenge.
Also unclear is why Tett thinks that Congress is likely to fall for her ruse. If, as she correctly notes, the Republicans who control the House of Representatives are implacably opposed to new gun-control measures, then why, exactly, would they consent to increase the “federal excise tax on the import and retail sale of guns and ammunition” for the first time since 1919 — let alone to do so two, three, or five times over? At present, Republicans in the House remain unwilling to agree to any tax increases whatsoever. Why, exactly, does Tett believe that those same people will be willing to acquiesce to a request from President Biden to raise taxes on guns — and to do so in pursuit of an unsubtle workaround in lieu of the firearms legislation it implacably opposes? The idea is bizarre.
But, alas, it is sadly typical. Having lost the argument over and over and over again, the advocates of stricter gun control are often left searching for that One Weird Trick that will bring the whole edifice tumbling down. Sometimes, that trick involves the cynical pretense that the Second Amendment doesn’t mean what it says. Sometimes, that trick involves brazenly political attacks on interest groups that support the right to bear arms. And, sometimes, that trick involves the unlettered insistence that a new tax or a new insurance requirement or the banning of a key component will break open the case for good. It won’t.