Governor Gavin Newsom (D.) has called it a “sin tax.”

Recently, California layered an 11% retail excise tax on top of ordinary sales tax for firearms, precursor parts, and ammunition. Colorado followed with a 6.5% version. Both sit beside the longstanding federal Pittman-Robertson manufacturer’s excise tax (11% on most firearms, 10% on handguns), and California’s already expensive firearm transfer fees.

For these sorts of taxes to survive under the Supreme Court’s Second Amendment test from New York State Rifle & Pistol Association v. Bruen, the government must show a special tax on common firearms comports with our Nation’s historical tradition of firearm regulation.

A close look at that tradition, from the colonial period through 1900, shows the opposite: this country did not build a habit of singling out common firearms and ammunition for special taxes. The few historical levies that look anything like “weapons taxes” almost always targeted only Bowie knives, pocket pistols, and other arms many contemporaries treated as “dangerous and unusual” weapons that were outside the scope of the Second Amendment right. The prevailing popular arms of the era were almost never singled out for taxation. 

In fact, some of the earliest legal documents in English North America went out of their way to keep arms cheap to obtain. The Second Charter of Virginia in 1609 allowed colonists to outfit themselves with armor, weapons, and powder without “Subsidy, Custom, Imposition, or any other Tax or Duty.” The Great Patent of New England in 1620 similarly let colonists import arms, armor, and powder free of customs for the colony’s first seven years. 

Founding-era practice pushed in the same direction. Militia laws did not merely tolerate private arms; they required eligible men to keep them, and they often protected those arms from being seized to pay debts or taxes. The federal Militia Act of 1792, for example, exempted militia arms from “suits, distresses, executions or sales, for debt or for the payment of taxes.” Massachusetts and Delaware had parallel rules. 

Founding-era tariffs on imported firearms are the closest founding-era analogue to modern excise taxes. Congress put a 10% duty on imported gunpowder in 1789 and a 15% duty on imported firearms starting in 1794. But those duties were protectionist tools meant to strengthen the domestic arms industry; local gunmakers’ wares faced no such taxation. Alexander Hamilton’s Report on Manufactures urged the imposition of tariffs to help build domestic industry, and Congress slapped similar duties on steel, iron, books, chocolate, buckles, leather, and a long list of other goods. The broad sweep of tariffs in that era was more akin to a modern sales tax, not a tax aimed at firearms in particular, and the point was certainly not to discourage firearm ownership. 

In contrast, Governor Newsom’s open branding of California’s levy as a “sin tax” reveals that the point of the modern tax is precisely to discourage protected activity.

In the nineteenth century, some more taxes started to appear, but they primarily targeted “dangerous and unusual” weapons. For example, Alabama’s 1837 Act to Suppress the Use of Bowie Knives imposed a $100 tax (roughly $3,500 today) on transferring a Bowie knife or similar weapon. However, that tax was relatively short-lived, having been reduced to a $2 tax by the 1850s. Territorial Florida in 1838 hit dealers in dirks, pocket pistols, and Bowie knives with a hefty annual license fee and taxed public carry of those same weapons. Mississippi, North Carolina, Charlotte, and Jackson layered smaller annual or carry-linked taxes on Bowie knives and pistols. These taxes were focused on weapons that many commentators of the era felt were associated with brawls and concealed quarrels, not arms in common use for lawful purposes. Henry Campbell Black, of Black’s Law Dictionary fame, made that point explicitly in 1895, writing that Second Amendment “arms” meant military weapons, not “dirks, Bowie knives, and such other weapons as are used in brawls, fights, and riots.” 

Long guns and larger handguns generally avoided taxation, with a few rare exceptions of questionable motivation. An 1867 Mississippi measure assessed a hefty five-to-fifteen-dollar tax on “every gun and pistol,” and authorized seizure for nonpayment. But it only applied to Washington County, which was overwhelmingly populated by newly freed former slaves. Rather than a representative national historical tradition of firearm regulation, this was part of the Jim Crow pattern of using punitive taxation to disarm people the state preferred powerless. The Supreme Court has already said courts may not uphold modern gun laws by leaning on that “history the Constitution left behind.” Even setting racism aside, these measures were also regional in character, focused almost entirely in Southern states. This is exactly the sort of local practice Bruen treats as weak evidence of a national tradition.

Other nineteenth-century taxes fare no better as analogues. Annual occupational taxes on dealers in pistols and Bowie knives were business licenses, not per-gun retail excises on buyers of common arms. Shooting-gallery taxes were an early form of zoning laws. Personal property taxes that listed firearms alongside pianos, watches, and cattle, as well as broad import tariffs that included guns among hundreds of goods, reaffirm only that guns could be taxed like other property. That history likely demonstrates that there is no constitutional issue with general sales taxes also applying to firearms, but it does not support excise “sin” taxes. 

I have more detail in a working paper recently published by the University of Wyoming, but to summarize, early America often protected arms from cost and seizure to ensure the People were armed. Tariffs on guns existed, but they were import protectionism shared with countless other goods and meant to promote domestic manufacturing. Nineteenth-century weapons taxation focused on disfavored knives and pocket pistols, mostly in the South, and sometimes in the service of racial subjugation. It’s difficult to see how that tradition is similar to the how and why of a modern “sin tax” on guns.