A poll tax was not an American invention. It was a holdover from the crown. After the Civil War, it was used in southern states to keep blacks from voting. States claimed the motive wasn’t to keep citizens from the polls, rather, to collect revenue. In truth, it was designed to “hurt” and place a right out of the reach of citizens.

Harper v Virginia Bd of Elections found poll taxes unconstitutional via the 14^th Amendment.

The Second Amendment was a wholly American invention.  A right of citizens to keep and bear arms was unprecedented in the Eighteenth Century. The founders had fought a long war against the crown and prevailed only because private citizens carried private arms into war to shake the crown’s yoke. There is a common misperception that the Second Amendment was the second amendment proposed. It wasn’t, but it ended up following the First Amendment, and perhaps by providence.

Following a mass shooting by a disgruntled rail worker who killed 9 then turned the gun on himself, the San Jose City Council passed, by a 10-1 vote, an ordinance that is the equivalent of a poll tax on legal guns. The proposed tax (called a “gun harm reduction fee”) would generate income for the city that the city would then funnel to nonprofit anti-gun advocacy groups. The ordinance also requires gun owners to buy private “liability” insurance. The City of San Jose intends to make it very expensive to own a gun. How that makes a city safer is the mystery.

The ordinance has now been challenged with a lawsuit filed in federal court yesterday, requesting injunctive relief and a declaratory judgment. The Dhillon Law Firm, for plaintiffs  NATIONAL ASSOCIATION FOR GUN RIGHTS, INC., a non-profit corporation, and MARK SIKES have sued the City of San Jose and the city manager. Lead counsel for this lawsuit is Harmeet Dhillon.

The lawsuit offers several arguments, all compelling and on point. In summary:

1. The ordinance, via the gun tax, requires gun owners to fund heretofore unknown private advocacy groups thus compelling each gun owner to fund speech guns owners likely don’t agree with. No citizen is compelled to fund political speech they disagree with. The Complaint states: “The Defendants may not require Plaintiffs to pay fees to non-profits when those fees are going to be used to fund activities of ideological or political nature with which Plaintiffs disagree. See Keller v. State Bar of California, 496 U.S. 1, 13 (1990).”
2. Laws pertaining to gun ownership are preempted, not just by the United States Constitution, but by California’s Penal Code as well. In short, the city has no right to regulate gun ownership.
3. The strongest argument is, of course, founded on the Second Amendment. The seminal case is District of Columbia v Heller, followed by United States v. Masciandaro, which cited Heller. The ordinance is intended to make gun ownership onerous, prohibitive, and expensive.

The Complaint further states:

“[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, Ill., 561 U.S. 742, 778 (2010).

Even in the face of “the problem of handgun violence in this country,…the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636.

 “The upshot of [Heller and McDonald] is that there now exists a clearly-defined fundamental right to possess firearms for self-defense within the home.” United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011).”

The Complaint also quotes  Minneapolis Star and Tribune, in which the court said:

“A tax that burdens rights protected by the [Constitution] cannot stand unless the burden is necessary to achieve an overriding governmental interest.”

Before the ordinance was passed by the city council, Mayor Sam Liccardo said:

“When we think about the horrible mass shootings, I don’t pretend to know that we could have stopped it or not. But if in fact, we could have delivered some mental health services, there may have been a chance, “That’s the point of this [legislation].”

The point of the ordinance, in reality, is to price gun ownership out of the hands of law-abiding private citizens with a “poll tax” on guns. The injunction should be granted but it is far from guaranteed. San Jose resides in the 9th District Court of Appeals, thus if the injunction is granted it is likely that San Jose will appeal to the ultra-liberal Court of Appeals.