New York’s S5813A Would Tax Guns and Ammo at 11%. Here’s Why It Probably Can’t Survive a Court Challenge.

Albany is back with a familiar idea in a more aggressive form: make gun ownership and training more expensive, then call it public safety. New York Senate Bill S5813A and its Assembly companion A10536 would impose an 11% excise tax on retail sales of firearms, major firearm components, and ammunition, while routing the revenue into a Gun Violence Prevention and School Safety Fund.

Supporters will pitch this as simple, modest, and analogous to the federal firearms excise tax. That framing sounds tidy. It is also incomplete. The federal tax is imposed at the manufacturer and importer level — not as a retail surcharge on ordinary New Yorkers buying a handgun for home defense or ammunition for legally required training. New York’s proposal operates much closer to the citizen and much closer to the constitutional right itself.

The deeper you read the text, the more constitutionally vulnerable this proposal looks. It is targeted rather than general. It taxes not only firearms but also ammunition and major components. It creates a brand-new registration-and-enforcement regime. It permanently exempts active and retired peace officers. And it arrives in a post-Bruen world, where the state no longer wins simply by asserting a good reason for the law.

This article does four things. First, it explains exactly what S5813A and A10536 would do. Second, it places them alongside prior New York attempts and similar laws in California, Cook County, and Seattle. Third, it evaluates the strongest constitutional arguments on both sides. Fourth, it gives my bottom-line view: if this bill were fully litigated under today’s Supreme Court framework, should it survive?

What S5813A and A10536 Actually Do

Stripped of press-release language, the bills would create a new firearms-specific tax article in the New York Tax Law. The core provisions:

• Tax rate: 11% of gross receipts from retail sales in New York of firearms, major components of firearms, and ammunition.
• Who must comply: Licensed firearms dealers, manufacturers making direct retail sales to NY consumers, and sellers of ammunition.
• Exemption: Retail sales to active or retired peace officers and to law-enforcement agencies employing them.
• Small-seller threshold: The tax does not apply in a quarter where total covered receipts fall below $5,000.
• Administrative regime: Registration certificates, electronic filing, records retention, inspection powers, penalties, and cross-referencing with State Police firearms licensing data.
• Revenue destination: The Gun Violence Prevention and School Safety Fund.

That last item matters politically. But the compliance structure matters legally. This is not just “sales tax went up a few points.” It is a separate, targeted, firearms-and-ammunition-specific regulatory-tax apparatus layered directly on top of a right the Supreme Court has recognized as belonging to ordinary individuals.

A Built-In Drafting Problem Nobody Is Talking About

One of the most interesting details in the text is a timing inconsistency that almost every summary skips. The operative tax section states the tax would begin July 1, 2026. The bill’s effective-date clause says sections 1 and 3 take effect January 1, 2027.

That is a drafting conflict Albany would presumably fix before passage. But it is worth flagging because it tells readers something about how the bill was assembled: as a political concept in search of a legally durable form, not as a carefully engineered revenue statute.

This Is Not Albany’s First Attempt

The official Senate bill page identifies prior-session predecessors S7733 and A8260. So when supporters present this as a timely new response to current events, readers should understand they are looking at a multi-year legislative campaign.

That history matters for two reasons. First, it undercuts any idea that this is a narrowly tailored reaction to a newly discovered fiscal need. Second, it shows that Albany has been searching persistently for legally viable ways to add price pressure to lawful gun ownership — even after Bruen reset the constitutional rules.

Modern Analogs: California, Cook County, and Seattle

New York is not writing on a blank slate. Several other jurisdictions have tried variations of gun-and-ammo taxation. None of them provides the clean constitutional cover that supporters might hope for.

California AB 28 — The Closest Analog

California’s AB 28 is the most direct predecessor. It imposes an 11% excise tax on retail sales of firearms, firearm precursor parts, and ammunition, uses nearly identical “Gun Violence Prevention and School Safety Fund” branding, and includes a law-enforcement exemption that closely mirrors New York’s. New York did not invent this model. It is borrowing one.

The litigation against AB 28 is important and more complicated than early summaries suggested. The original challenge, Jaymes v. Maduros, was voluntarily dismissed as the plaintiffs worked through California’s mandatory administrative exhaustion process. The active case is now Poway Weapons & Gear, Inc. v. California Department of Tax and Fee Administration, filed in Sacramento Superior Court. As of late 2025, that case was reported to be moving toward a merits ruling. No final constitutional judgment has been issued. The issue remains live and developing — and what California courts say will directly shape New York strategy.

Cook County, Illinois

Cook County imposes a $25 tax per firearm as part of a local firearm-and-ammunition tax structure. It is useful policy lineage. It is not a clean constitutional answer for New York, because the Cook County challenges developed mostly before the current post-Bruen framework applied.

Seattle

Seattle’s local ordinance imposes $25 per firearm, $0.02 per round for .22 caliber or smaller, and $0.05 per round for all other ammunition. Again — policy lineage, not constitutional precedent. Modern government examples do not satisfy Bruen‘s historical-tradition test.

That distinction is critical and worth repeating: policy lineage is not constitutional pedigree. A state does not carry its historical burden under Bruen simply by pointing to other modern governments that tried similar things.

The Federal FAET: A Useful Talking Point, Not a Legal Shield

The sponsor memo leans hard on the federal Firearms and Ammunition Excise Tax (FAET). It says New York’s bill would “match” the federal tax. That sounds tidy. It dissolves under scrutiny.

The federal FAET is imposed under 26 U.S.C. § 4181 on manufacturers, producers, and importers — not on retailers or the civilians buying from them. Federal guidance sets the rates at 10% for pistols and revolvers and 11% for other firearms, shells, and cartridges. Revenue has historically funded wildlife restoration under the Pittman-Robertson framework, not programs framed as remediating the harm caused by the taxed industry.

New York’s bill differs in five legally material ways:

1. Collection point: FAET is upstream at the manufacturer/importer. S5813A is a retail surcharge on ordinary citizens at the cash register.
2. Constitutional proximity: New York’s tax lands much closer to the individual exercising the right.
3. Revenue purpose: FAET funds wildlife restoration. S5813A is expressly framed as remediating harm caused by the taxed products.
4. Exemption structure: The federal tax applies uniformly to manufacturers. New York’s exempts law enforcement, creating a two-class civilian burden.
5. Layering: New York’s tax sits on top of an already expensive licensing, training, and compliance environment unique to this state.

The existence of FAET proves that governments have taxed firearms commerce in some settings at some points in history. It does not prove that New York may impose a targeted retail surcharge on ordinary civilian acquisition of arms and ammunition in 2026 and survive a modern Second Amendment challenge.

Bruen Is the Center of Gravity — and It Cuts Against Albany

Before 2022, New York would have defended S5813A through interest-balancing: public safety goals, fiscal necessity, and legislative judgment. Courts often accepted that framing with only modest scrutiny. That method no longer governs.

In N.Y. State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that when the Second Amendment’s plain text covers the conduct at issue, the government must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. No interest balancing. No deference to legislative judgment. The burden is on the state.

That creates two sequential problems for Albany:

1. Is the conduct covered? Yes. The right to keep and bear arms necessarily implies a practical ability to acquire common arms and the ammunition needed to use them. This is not a serious dispute after Heller and Bruen.
2. Can the state show a sufficiently close historical tradition? That is where Albany’s case begins to fall apart.

What the Sponsor Memo’s Historical Analogs Actually Show

The sponsor memo does not ignore the historical question. It tries to build a record. That is important, because it previews exactly what New York is likely to argue in court.

The memo cites: the federal FAET dating to 1919; an 1883 California law involving taxes on the storage, manufacture, and sale of gunpowder and related products; and an assortment of historical taxes in Mississippi, North Carolina, Georgia, Alabama, Hawaii, Nebraska, Florida, Wyoming, and Virginia involving licenses or taxes on firearms or dangerous weapons.

Some of those sources sound impressive in a memo. They are weaker as constitutional analogs.

Why the 1883 gunpowder law is a poor match

A law regulating storage and manufacture of gunpowder — aimed at fire-risk and safety concerns around a dangerous explosive — is not analogous in principle to an across-the-board retail excise tax on ordinary firearms and defensive ammunition purchases. The problem addressed is different. The mechanism is different. The burden on the right is different.

Why 19th-century “dangerous weapon” taxes are also weak

Some old taxes on Bowie knives, pocket pistols, or generically “dangerous weapons” will be cited. Courts should read those carefully. Many targeted weapons that were considered especially suspect in specific social contexts, or operated through occupational licensing rather than consumer retail, or existed in jurisdictions and eras where the Second Amendment’s application was understood very differently than Heller requires today.

Under Heller, handguns are the “quintessential self-defense arm.” A tax on common defensive handguns and the ammunition needed to train with them is not the same thing as a 19th-century occupational fee on Bowie knife merchants.

The real historical burden Albany cannot easily meet

New York does not just need historical noise. It needs a tradition close enough in principle and operation to justify a modern statewide retail surcharge on ordinary civilian acquisition of common arms and ammunition for self-defense. That is a specific and demanding standard — one the scattered historical examples in the sponsor memo do not cleanly satisfy.

Rahimi Did Not Save This Kind of Law

After United States v. Rahimi (2024), some commentators began suggesting the Court had softened Bruen into something far more flexible. That reading overreaches.

Rahimi confirmed that courts may reason from historical principle rather than demanding a perfect historical twin. But the analogy still has to be real. The modern law and its historical analog must line up meaningfully in both why the law exists and how it burdens the right.

A law disarming a person found dangerous under a domestic-violence restraining-order regime operates on a principle — keeping weapons from those adjudicated dangerous — with genuine founding-era parallels. A retail tax that makes firearms and ammunition 11% more expensive for ordinary law-abiding civilians while exempting government-connected officers operates on a completely different principle. Rahimi did not create a path for that kind of law to survive Bruen.

The “Tax on a Right” Argument — Potentially the Strongest Attack

The most powerful argument against S5813A may not be a pure Second Amendment argument. It may be the broader constitutional-taxation principle: government cannot use selective, targeted taxation to burden the exercise of a constitutional right.

The Supreme Court has said this repeatedly across First Amendment contexts:

• Murdock v. Pennsylvania (1943) — a license tax on religious canvassing struck down; the power to impose a tax on the exercise of a freedom can be as potent as censorship.
• Grosjean v. American Press Co. (1936) — a targeted tax on larger newspapers struck down; the taxing power cannot be weaponized against disfavored speakers.
• Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (1983) — differential taxation of the press subjected to heightened scrutiny, regardless of the tax rate.
• Harper v. Virginia Board of Elections (1966) — the poll tax struck down; the right to vote cannot be conditioned on the ability to pay a government-imposed fee.

None of these cases is a direct Second Amendment holding. But they all stand for the same principle: government may not selectively impose a financial premium on the exercise of a constitutional right and then say the right still exists because the affluent can still afford it.

New York will argue nobody is being forbidden from buying a gun. That objection proves too much. Rights can be burdened into practical irrelevance through cost without being formally outlawed. A handgun that costs 11% more. Ammunition that costs 11% more. Replacement parts that cost 11% more. The argument that “the right still technically exists” is the same argument that failed in Harper.

The Law-Enforcement Exemption: The Bill’s Most Constitutionally Damaging Feature

If I had to identify the single most revealing provision in the bill, it is the permanent exemption for active and retired peace officers and the agencies employing them.

That carveout does three damaging things to the state’s case in court:

1. It dismantles the neutral-revenue argument. Law enforcement officers buy, carry, qualify with, and maintain firearms and ammunition regularly. Exempting them from a tax supposedly aimed at the product category is inconsistent with the stated revenue rationale.
2. It reveals the real structure: a two-class system. Government-connected people get cheaper access to arms. Ordinary civilians pay a premium. That is not a neutral tax. That is selective civilian burdening.
3. It collides directly with Heller‘s individual-right premise. Heller held the Second Amendment protects a right belonging to “the people” — not a government-granted privilege. A statute that builds in a structural discount for favored government classes and a surcharge for everyone else sits in direct tension with that premise.

A clever challenger might actually focus a first attack specifically on the exemption. Striking the exemption alone might not end the bill — but it would force Albany back to the drawing board and publicly expose the two-class architecture the current text embeds.

The New York Cost Stack: Why Eleven Percent Here Means Something Different

Courts should not evaluate this bill in a vacuum. Eleven percent in a frictionless state is one thing. Eleven percent in New York is something else entirely.

New Yorkers already face substantial costs to exercise this right lawfully. As I have covered in detail elsewhere on this site, the state’s ammunition background check law adds friction and cost to every single ammo purchase. Our county-by-county CCW guide documents what the full process actually costs by jurisdiction. And my piece on New York’s double standard in gun laws goes deeper into who pays what.

The Second Amendment is not exercised once. Proficiency requires repetition. Proficiency requires ammunition. Each return trip to the range, each box of defensive ammo, each replacement part — all subject to the 11% tax under S5813A. The burden compounds. A right that becomes progressively more expensive to maintain is a right that fades for ordinary New Yorkers while remaining accessible to those who can most afford it.

The Tax Injunction Act: Why Procedure Could Matter Almost as Much as Merits

One underreported dimension of these challenges is the procedural minefield challengers face before any court ever reaches the Second Amendment question.

The Tax Injunction Act, 28 U.S.C. § 1341, generally bars federal courts from enjoining state tax collection where a plain, speedy, and efficient remedy exists in state court. That does not decide the constitutional question — but it does shape where and how the constitutional question gets heard. In practical terms, a New York challenge would likely need to start in state court, or in a refund posture after the tax has already been collected, rather than in a clean federal pre-enforcement injunction.

That is exactly the procedural trap California laid for the initial AB 28 challengers. The original Jaymes v. Maduros case was voluntarily dismissed when the exhaustion and refund requirements became the battlefield. The case was refiled as Poway Weapons & Gear after the administrative process matured.

New York organizations watching this fight should be building their procedural playbook now — not after the effective date arrives.

Should This Survive? My Bottom-Line View

My answer is no. A court faithfully applying Heller, McDonald, Bruen, and the broader constitutional-tax doctrine should strike this down.

The challenger’s strongest merits arguments

1. Acquisition of arms and ammunition is covered conduct. A right to keep and bear arms that excludes the practical ability to acquire common arms and ammunition is not a real right.
2. The tax is targeted, not general. This is not ordinary sales tax applied to all commerce. It is a firearms-specific regulatory-tax system.
3. The historical analogs are weak. Gunpowder-storage safety laws, occupational licenses, and taxes on fringe “dangerous weapons” do not closely justify a modern statewide 11% retail surcharge on common firearms and defensive ammunition.
4. The law-enforcement exemption reveals selective burdening. The government’s own preferred class pays less. Civilians pay more. That is the opposite of a neutral tax.
5. The bill taxes training inputs. Ammunition is a necessary input to competent, safe, and lawful exercise of the right — not a luxury afterthought.
6. New York’s cumulative burden is unusually heavy. Courts should evaluate this tax in context, not in isolation.

The state’s best counterarguments — and their limits

• The law does not ban possession or carry. True — but the poll-tax cases show that formal permission is not the same as unimpeded access.
• Taxes are normal instruments of governance. True in general — but not when targeted specifically at constitutionally protected conduct without historical grounding.
• The federal FAET shows firearms have historically been taxed. Different structure, different collection point, different purpose. Addressed above.
• The tax is modest, not confiscatory. Under Bruen, the test is historical tradition, not whether eleven percent feels proportionate.
• The revenue funds school safety. The spending destination is constitutionally irrelevant to the burden question.

A constitutional right is not preserved merely because it survives in premium form for the affluent and the government-connected.

Could a narrower court split the decision?

Yes. Possible narrower paths include striking only the law-enforcement exemption, invalidating the ammunition portion first, framing the ruling around New York’s unusually heavy cumulative burden, or delaying a real merits answer through procedural grounds. On the best reading of current doctrine, the full bill should not survive. But courts can take narrow paths, and litigation timelines can be long.

What Legislators, Journalists, and Gun Owners Should Be Watching

If S5813A and A10536 continue moving, the questions that matter most are not just “did it pass?” They are:

• Does the final version preserve or modify the law-enforcement exemption?
• Does the Ways and Means Committee move A10536 to the floor?
• Does Albany incorporate the projected revenue into the state budget — increasing political pressure to defend the law?
• Who files the first challenge, in what forum, and does any organization seek a preliminary injunction before the effective date?
• How does the Poway Weapons California merits ruling land — and how quickly does it travel to New York legal strategy?
• Does the internal effective-date inconsistency get fixed — or does it create additional litigation surface area?

Those are not obscure process questions. They determine whether New Yorkers face a real-world financial burden while courts take years to answer whether the law was constitutional in the first place.

Why This Matters Even to Readers Who Don’t Own Guns

The principle at stake reaches beyond firearms. Once government can impose targeted premiums on the exercise of constitutional rights, rights start becoming tiered goods — available in full to those with money or government connections, and available at a discount to everyone else. That should concern anyone who cares about civil liberties in this state, regardless of their views on guns.

For New Yorkers who do care about lawful self-defense, the message is more direct. As I wrote in the 2026 sensitive-locations analysis and in my review of the 2A court battles now developing, Albany’s post-Bruen strategy has been consistent: restrict where you can carry, add costs where you can’t ban outright, and hope the cumulative weight of the system deters people from exercising the right at all.

S5813A and A10536 are the latest iteration of that strategy. Courts should recognize it for what it is.

Final Verdict

Could Albany pass this? Yes.

Would it be challenged immediately? Almost certainly.

Should it survive a serious Second Amendment challenge? In my view, no.

S5813A and A10536 are not ordinary tax measures. They are targeted financial burdens on the acquisition and maintenance of a constitutionally protected right, layered on top of an already expensive compliance regime, made worse by a permanent government-class exemption, and unsupported by the kind of historical tradition Bruen requires. If the Supreme Court meant what it said, this kind of law should fail.

Frequently Asked Questions

What is S5813A?

S5813A is a New York Senate bill that would create an 11% excise tax on retail sales of firearms, major firearm components, and ammunition, and direct the revenue into a Gun Violence Prevention and School Safety Fund.

What is A10536?

A10536 is the Assembly companion bill to S5813A. Introduced in March 2026, it was referred to the Assembly Ways and Means Committee.

Does the bill exempt law enforcement?

Yes. Sales to active and retired peace officers and to the law-enforcement agencies employing them are permanently exempted.

Isn’t there already a federal gun tax?

Yes, but the federal FAET is imposed at the manufacturer and importer level — not as a retail surcharge on ordinary civilian purchases. The structure, collection point, and historical purpose are materially different from New York’s proposal.

What is the strongest constitutional argument against the bill?

That New York is imposing a targeted financial burden on conduct protected by the Second Amendment without a sufficiently close historical tradition of analogous regulation, while building in a permanent government-class exemption that reveals the true structure: cheaper access for the connected, a surcharge for everyone else.

Does the school safety spending purpose save the bill?

No. Under Bruen, the question is historical tradition — not whether the legislature chose a sympathetic destination for the revenue.

Could a challenge get delayed on procedural grounds?

Yes. State-tax challenges routinely face administrative exhaustion, refund requirements, and forum disputes before courts reach constitutional merits. California’s AB 28 litigation demonstrated exactly this dynamic.

Would this automatically be unconstitutional?

No law is automatically unconstitutional until a court says so. But under the current Supreme Court framework established by Heller, McDonald, and Bruen, this bill appears highly vulnerable.

Sources and Authorities

1. New York Senate Bill S5813A — bill page, actions, sponsor memo, and text
2. S5813A PDF bill text
3. New York Assembly Bill A10536 — bill page and text
4. TTB FAET Reference Guide
5. TTB Firearms and Ammunition Taxes and Exemptions
6. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)
7. United States v. Rahimi, 602 U.S. 680 (2024)
8. District of Columbia v. Heller, 554 U.S. 570 (2008)
9. McDonald v. City of Chicago, 561 U.S. 742 (2010)
10. Murdock v. Pennsylvania, 319 U.S. 105 (1943)
11. Grosjean v. American Press Co., 297 U.S. 233 (1936)
12. Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983)
13. Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)
14. 28 U.S.C. § 1341 — Tax Injunction Act
15. California DOJ summary of AB 28
16. Michel & Associates — Jaymes / Poway Weapons litigation page
17. Cook County firearm and ammunition tax page
18. Seattle firearms and ammunition tax page
19. NY Safe Inc. — County-by-County NY CCW Guide
20. NY Safe Inc. — NY Sensitive Locations Law 2026
21. NY Safe Inc. — 18-Hour NY CCW Class Overview
22. NY Safe Inc. — SAFE for Some: The Double Standard in New York Gun Laws
23. NY Safe Inc. — 2025–2026 2A Court Battles
24. NY Safe Inc. — NY Ammo Background Check Guide
25. NY Safe Inc. — What to Expect: NY 18-Hour Course