Necessary to the right to keep and bear arms is the right to acquire them. Yet, Colorado recently passed Proposition KK, enacted as C.R.S. sec. 39-37-303 et seq. which imposes a 6.5% excise tax on the retail sale of “any firearm, firearm precursor part, or ammunition. While Colorado’s tax on the legal purchase of firearms will be levied on vendors of products protected by the Second Amendment, the effects of the tax will be felt by all citizens of Colorado who exercise their constitutional right to keep and bear arms, as those vendors pass the cost of the tax on to ordinary individuals who purchase firearms, firearm precursor parts, and ammunition. The net result is vendors will suffer lost business while peaceable individuals will face a tax on the exercise of their legal and constitutionally protected activity.

Colorado’s excise tax is unconstitutional under the recent Supreme Court Bruen decision. The tax on the exercise of Second Amendment rights implicates conduct protected by the Second Amendment’s plain text by adding to the cost of acquiring a firearm. Meanwhile, this infringement-by-taxation scheme finds little basis in this country’s history and tradition of firearm regulation.

The Supreme Court has repeatedly held in various contexts that the exercise of a constitutional right cannot be singled out for special taxation. Colorado’s excise tax singles out the exercise of Second Amendment rights for special, disfavored treatment. 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 (quoting McDonald).

Case Team: David H. Thompson, Peter A. Patterson, William V. Bergstrom, Athanasia O. Livas, Julian R. Ellis, Jr. and Michael Francisco.