The Washington State Supreme Court on Thursday upheld the authority of the City of Seattle to impose a so-called “gun violence tax” on the sale of firearms and ammunition within city limits.
The tax had been challenged by the Second Amendment Foundation, National Rifle Association and National Shooting Sports Foundation, along with two local firearms retailers.
The 29-page majority opinion, written by Justice Debra L. Stephens, was signed by six of the nine justices, with Justice Steven J. Gonzalez and Chief Justice Mary E. Fairhurst concurring in a separate opinion, and Justice Sheryl Gordon-McCloud filing a lone dissent.
SAF founder and Executive Vice President Alan Gottlieb was blunt in his reaction.
“The high court’s decision to uphold what clearly appears to us as a violation of Washington’s 34-year-old State Preemption Act is proof positive that the court places political correctness above the rule of law,” he said. “Gun owners must get more involved in Supreme Court races.”
Writing for the majority, Justice Stephens noted that the gun tax ordinance “is constitutionally valid and not preempted” by the state’s 34-year-old preemption law.
That preemption statute reads:
“The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.”
In the concurring opinion, Justice Gonzalez acknowledges that “the majority improperly discounts the importance of legislative history in deciding whether a charge is a tax or regulation. Evidence of legislative intent to circumvent a state preemption statute is important evidence that an ordinance may not be what the municipality purports it to be.”
The court recognized that the plaintiffs had submitted evidence “that the city crafted the ordinance to avoid statutory preemption…which necessitates increased judicial scrutiny…” However, Gonzalez added that “there is nothing wrong with knowing the law and acting within its bounds-indeed, it is required. (The plaintiffs) failed to show that the City’s tax label is a sham.”
But in her dissent, Justice Gordon-McCloud observes that the state preemption act’s “plain language demonstrates clear legislative intent to preempt local ‘laws and ordinances’ that ‘relat[e] to firearms’ as broadly as possible. A city tax that singles out the sale of firearms and ammunition for disadvantageous treatment is therefore preempted.”
The ruling and dissent may be read here.
The ruling is already raising concerns that the court has opened the door for problems when it is asked to consider other tax challenges against Seattle, such as the proposed soda and income taxes. The latter is already facing rising opposition.
“This isn’t just a loss for the rule of law, firearms dealers and gun owners living in Seattle,” Gottlieb said about the gun tax. “It’s a slap in the face to the Washington Legislature. In 1983, state lawmakers adopted the state’s preemption act, which squarely put all firearms regulation under authority of the Legislature. It is clear from this ruling that the Legislature will have to strengthen the preemption act to not only nullify what amounts to an unconstitutional poll tax on gun owners, but to also make sure this is not allowed to happen again.”
And then he told Liberty Park Press, “Remember what the founders said, ‘The power to tax is the power to destroy.’”