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Proposed Biden Gun Tax is Doubly Unconstitutional

During the 2020 Presidential campaign, Joe Biden promised a stiff new gun control law. The features ascribed to it are mandatory gun registration and a $200 tax per firearm – maybe more. At this date, the promised bill hasn’t come before Congress. That means there is still time to marshal arguments and prepare to convince people how bad an idea it is.

Apart from the popularity of the tax, and whether a vote on it will end some political careers, there are two Constitutional obstacles to overcome.

  • The law threatens our Second Amendment right to “keep and bear arms.”
  • Levying taxes on firearms you already own will violate the Article I ban on federal property taxes.

These are stiff obstacles to overcome, evade, or ignore. But if the proponents push hard enough, they could not only pass the gun control law but, as a bonus, enable an American socialist economy. Learn about the stakes involved, lest we lose our rights through inattention.

The Second Amendment and militia are still relevant

Those who would control guns think that the Second Amendment has become irrelevant and can be ignored. They don’t understand the militia, or its continuing relevance to American society. The text of the Second Amendment is rather short:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.[1]

A militia comprises the fighting-age adults, traditionally just the males, of a community, county, or state. When mustered, the people arrive complete with their own firearms, ready for local military duty. They’re the town’s, or county’s, first responders to invaders or banditry.

Congress is given permission to call up militia for federal use in some circumstances:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [2]

Note that the language doesn’t have Congress create militia units. Rather, it assumes that these already exist, apart from the federal government, and Congress can sometimes ask for their use in quelling domestic disturbances.

The maintenance and use of militia have atrophied over time – our wars have become foreign, out of the reach of militia – but state laws governing militia are still on the books. Some places, such as Tazewell county in Virginia, are even re-instituting their local militia. [3] This might be a politically controversial move, but it’s quite within the county’s authority.

If the militia were regarded as needed for local protection, and sometimes for national defense, then why should the Founding Fathers fear that the government would disarm them? Joseph Story, a Supreme Court justice of the early 1800s, wrote a commentary on the Constatation, his book A Familiar Exposition of the Constitution of the United States. In his notes on the Second Amendment he gave his interpretation:

“§450. The next amendment is, “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men. §451. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the right of the people. The right of the citizens to keep and bear arms had justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”[4]

The Founding Fathers remembered the attempted British disarmament of the Massachusetts militia, prior to the battles of Lexington and Concord. The Second Amendment is meant to be a continuing enablement of local militia. Through them, local authorities can work to resist federal tyranny.

The proposed gun control bill is an attempt at disarmament, infringing the right to keep and bear arms. It threatens impoverishment for owners – the “registration fees” will only be repeated and increased, until they’re unaffordable – and imprisonment for those who resist this unconstitutional power grab.

Congress isn’t allowed to tax the firearms you already own

This gun control proposal would make you register your arms with the federal government, and also pay a $200 tax on each firearm. The biggest problem with this particular tax, or registration fee, is that Congress isn’t allowed to tax things you already own. A federal property tax is unconstitutional. In the words of Nicholas Giordano, Professor of Political Science at Suffolk Community College,

It’s saying that a new tax will be applied to already, previously purchased, firearms. And to me, that violates Article I, Section 9, of the United States Constitution, where the government cannot pass any ex-post-facto laws. It can’t make something illegal today that wasn’t illegal a few days ago.[5]

What Professor Giordano refers to is a “direct tax,” a tax on a specific possession like a gun or a wagon. This term appears only twice in the Constitution.

  • Within Section 2: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.[6]
  • Within Section 9: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.[7]

The issue of direct taxes came before the Supreme Court in 1796, in the case Hylton v United States, involving a tax on carriages (basically, a horse-powered bus). Having no established meaning for “direct tax,” the Court invented one.

“The boundary, [between direct and indirect taxes] then,” he argued, “must be fixed by a species of arbitration, and ought to be such as will involve neither absurdity nor inconvenience.” Then followed HAMILTON’S distinction: “The following are presumed to be the only direct taxes: capitation or poll taxes; taxes on lands and buildings; general assessments, whether on the whole property of individuals, or on their whole real or personal estate. All else must of necessity be considered as indirect taxes.”

The court accepted HAMILTON’S reasoning and the three judges who delivered opinions took the stand that only taxes which could be apportioned should be considered direct.[8]

This definition still stands. Congress can impose business taxes and excise taxes, but not taxes on real estate or personal property. It may tax a gun purchase or transfer, but not create taxes, or registration fees, on firearms you already own. The individual states might be able to tax these firearms, but Congress cannot.

Taxing firearms also opens the door to a socialist economy

A big feature of the 2020 Presidential campaign was promoting a wealth tax. This was sometimes promoted by claiming that wealthy people were unjustly rich, and sometimes as a way of funding the Green New Deal. Through this, the government would tax what you already own: home, car, jewelry, bank accounts, etc. Over time, this tax would impoverish everyone, not just the formerly wealthy. In the end, we will all get to live the socialist dream, living from hand to mouth on government largesse. For details on how this would happen, read this article about the wealth tax.[9]

The discussion on the proposed gun tax points out that a federal property tax is unconstitutional. But the Supreme Court has been known to reverse prior decisions. If it does so, and rules the gun tax permissible, then it automatically authorizes the socialist-enabling wealth tax. It also works in reverse, with a successful wealth tax enabling the gun tax. It is as though there are two cannons aimed at the Supreme Court’s doors, and only one of them needs to succeed for both proposals to succeed. This means that there is an additional spur to ensure that these proposals are defeated in Congress. Why take a chance at what the Supreme Court might do?

The Biden gun control bill is a ‘hill to die on’

To vote for a wealth tax is to vote for a socialist America, to approve an unconstitutional provision, and overturn our current society. To vote for Biden’s gun control law is to vote for two unconstitutional provisions, and also enable the socialism.

U.S. Representatives, or Senators, who would vote for either of these provisions would be violating their oaths of office. Rather than defending the Constitution, they will have voted to reinterpret, or ignore, Constitutional provisions. We will have reached the “progressive” goal of having a “living Constitution,” worthless as a restraint on government. It’s apparent that this fight has the highest possible political consequences.


  1. Constitution of the United States, Second Amendment, Constitution Annotated,

  2. Constitution of the United States, Article I, Constitution Annotated,

  3. Hoyt, Gregory, It begins: Virginia forms active militia to protect sheriffs, citizens from unconstitutional laws, Law Enforcement Today, December 16, 2019,

  4. Uretsky, Chad, Why the Second Amendment?, Great American Politics, January 15, 2021,

    There are many online sellers of Joseph Story’s book A Familiar Exposition of the Constitution of the United States. In addition, you can read it online, through Google’s good graces, at

  5. Pasdar, Arian, Biden’s Proposed Gun Tax Unconstitutional, Expert Says, NTD Evening News, November 22, 2020,

  6. Legislative Branch, Interactive Constitution,

  7. Ibid.

  8. Riddle, J. H., The Supreme Court’s Theory of a Direct Tax, Michigan Law Review, Vol. 15, No. 7 (May, 1917), pp. 566-578,

  9. Perry, Oliver, Wealth Tax: the envious enabler of American Socialism, Fix This Culture blog, September 11, 2019,