Is First Amendment Fee Jurisprudence the Right Approach to the Second Amendment?

The historical record suggests: Maybe not.

First Amendment “fee jurisprudence” deals with the constitutionality of fees charged by governmental entities on activities protected by the First Amendment, like fees charged to hold a rally or parade. The rule is that fees can be imposed on the exercise of a constitutional right when the fees are designed to defray, and do not exceed, the administrative costs of regulating the protected activity. The Second Circuit borrowed First Amendment fee jurisprudence in the Second Amendment context in Kwong v. Bloomberg. Kwong upheld a $340 firearm licensing fee because it was designed to defray (and did not exceed) the administrative costs associated with the licensing scheme. A handful of other courts (e.g., here, here) have also adopted First Amendment fee jurisprudence in the Second Amendment context.

But does this make sense? If the right to bear arms had no relevant history of its own, then it would make sense to look for analogies outside of the Second Amendment context. But the right to bear arms does have a relevant history of its own – a rich record of state and local regulations from pre-colonial times to 1934 (the year the federal government stepped in, and when the Repository stops recording laws). Courts can consider the historical record of fees as applied to guns. This “local” history of the Second Amendment should come before analogies to the doctrine of the First.

The historical record of firearm taxation and licensing suggests that First Amendment fee jurisprudence may not be the most apt analogy. Tax revenue and licensing fees were not typically used to defray costs of the licensing or registration scheme.

Often, the tax revenue and licensing fees were explicitly directed to an unrelated program or project. For example, an 1867 Washington County, Mississippi tax law explicitly declared that the revenue was to contribute to the bridge fund of Washington County. A 1903 Virginia tax on shotguns, rifles, muskets, and other firearms would go to support “the government and public free schools.” Most strikingly, a 1926 Virginia law directed that all the license tax collected from a handgun licensing scheme would create a “diseased and crippled children’s hospital fund.” The explicit purpose of the fund was to establish and maintain a hospital for the care, treatment, and vocational training of diseased and crippled Virginian children.

Sometimes, the tax revenue was directed to a tangentially related program. For example, an 1889 California tax on the storage, manufacture, or sale of gunpowder and other explosive materials directed that the revenue would go to a Fireman’s Charitable Fund. The logical connection is that explosives can cause fires, which require firefighters to put out. However, such a tangential connection was not defraying the costs of the regulatory scheme.

Occasionally, the tax revenue and licensing fees just went to the general state revenue. For example, an 1844 Mississippi tax law’s explicit purpose was to raise revenue for the state. In sum, very few statutes explicitly designated the revenue to defray the costs of implementation.

The fact that these statutes rarely dedicated the revenue to defraying the costs of implementation, instead directing the revenue to sometimes unrelated organizations, suggests that First Amendment fee jurisprudence may not be the proper approach to firearm license fees today.

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Genesa Cefali. This post, like the Repository, is exemplary and not exhaustive.]