While I am not an attorney and cannot give formal legal advice, a 1943 U.S. Supreme Court decision, Murdock v. Pennsylvania, may give Second Amendment–supporters an overwhelming legal weapon with which to destroy every single firearm ownership (although not necessarily concealed carry) licensing scheme in the country. This includes those that require licenses to own or purchase firearms.
- License to own: IL, MA, NY
- License to purchase: CT, HI, IA, MD, MI, NE, NJ, NC, RI
The executive summary of the ruling in Murdock v. Pennsylvania (1943) was that it is unconstitutional for a state to levy a tax on people who want to sell religious merchandise. “A municipal ordinance which, as construed and applied, requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities, is invalid under the Federal Constitution as a denial of freedom of speech, press and religion. The mere fact that the religious literature is ‘sold’, rather than ‘donated’ does not transform the activities of the colporteur into a commercial enterprise.”
What does this have to do with fees to obtain a license to own or purchase a firearm? The USSC also found, “A State may not impose a charge for the enjoyment of a right granted by the Federal Constitution.” This means the entire Bill of Rights as opposed to just the First Amendment.
It is similarly unconstitutional to charge a fee to exercise the right to vote, AKA a poll tax. This could well be the reason why states with voter ID laws must provide free identification cards to qualified residents who do not have driver’s licenses, as shown by Crawford v. Marion County Election Board. “The law’s universally applicable requirements are eminently reasonable because the burden of acquiring, possessing, and showing a free photo identification is not a significant increase over the usual voting burdens, and the State’s stated interests are sufficient to sustain that minimal burden.” States can charge fees for driver’s licenses because driving is a privilege, but voting is a right.
Gun Licensing Fees Are Racist
The racist nature of many gun licensing schemes is meanwhile underscored by an amicus curiae brief filed by the African-American Gun Association (AAGA) against California. “African Americans have been the target of some of the oldest and most odious attempts at forced disarmament[.] … NAAGA has a strong interest in this case because taxes and fees imposed on the right to keep and bear arms disproportionately affect African Americans,
due to the average lower income and higher rate of poverty in the African-American community.” White supremacists once argued openly that this was their intention, and I recall that the complete quote, while it did not use the N-word, did refer to the “son of Ham.”
It is a matter of common knowledge that in this state and in several others, the more especially in the Southern states where the negro population is so large, that this cowardly practice of “toting” guns has always been one of the most fruitful sources of crime[.] … There would be a very decided falling off of killings “in the heat of passion” if a prohibitive tax were laid on the privilege of handling and disposing of revolvers and other small arms, or else that every person purchasing such deadly weapons should be required to register[.] … Let a negro board a railroad train with a quart of mean whiskey and a pistol in his grip and the chances are that there will be a murder, or at least a row, before he alights.
The same went for a Virginia poll tax on the right to vote.
Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for — to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.
The same applies to laws that require gun-owners to buy expensive liability insurance that might be affordable by people of the middle and upper classes, but not by low-paid workers among whom are many black Americans. While these laws cannot discriminate openly against black people (just as Jim Crow gun taxes and prohibitions on inexpensive firearms known as N-word Saturday Night Specials did not specify any race), they can and do exploit the economic disparity that unfortunately prevails between Caucasians and black people to disarm the latter. Perhaps certain elements of the Democratic Party have hidden the same sheets and hoods they wore openly 70 or 80 years ago instead of getting rid of them entirely.
An Illinois Court Questioned the FOID Card Requirement
More to the point, however, is the brief’s citation of Murdock v. Pennsylvania and the phrase “[a]cross constitutional rights, the courts have consistently forbidden the use of special fees and taxes on constitutionally protected conduct to generate general revenue.”
Even Illinois’s own courts appear to be finding issues with the Firearm Owner Identification Card per Illinois v. Brown. “The circuit court was correct that the FOID card requirement impermissibly infringes on law- abiding persons’ rights to bear long arms-in their own homes for self-defense.” The court filing also argues that the FOID card fee violates not just the U.S. Constitution, but also Illinois’s own laws: “a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution. Thus, Brown, who was merely exercising her right to keep a long gun in her own home for self-defense, cannot be made to purchase a card or obtain a license to exercise this fundamental right guaranteed by the Constitution.” I do not know the outcome of this case but the bottom line is that an Illinois court had problems with the FOID law.
This article has hopefully provided Second Amendment–supporters with a valuable legal tool with which to attack all state laws that require people to pay for licenses to own or purchase firearms, and potential jurors (i.e., every citizen in the country) with information to use if called to serve in cases that involve these laws.
Civis Americanus is the pen name of a contributor who remembers the lessons of history and wants to ensure that our country never needs to learn those lessons again the hard way. The author is remaining anonymous due to the likely prospect of being subjected to “cancel culture” for exposing the Big Lie behind Black Lives Matter.
Image via Pexels.