A Denver County district court judge just refused to let one of Colorado’s targeted gun-tax defendants escape a Second Amendment lawsuit, and though the ruling is narrower than the headlines will suggest, it matters. On July 27, 2026, Judge Andrew Patrick McCallin of the Second Judicial District denied a motion to dismiss filed by El Paso County District Attorney Michael J. Allen in Langston v. Humphreys, No. 2025CV31185, clearing the way for a coalition of gun owners, a Colorado Springs gun range, and four of the nation’s leading Second Amendment organizations to keep pressing their challenge to Colorado’s Proposition KK — a 6.5 percent excise tax on the retail sale of firearms, firearm precursor parts, and ammunition.
A Procedural Win, Not a Decision on the Merits
I want to be precise about what Judge McCallin decided, because this order is easy to overstate. It addresses only Allen’s motion to dismiss under Colorado Rule of Civil Procedure 12(b)(1) and 12(b)(5) — the rules governing subject-matter jurisdiction and failure to state a claim. The court held that Magnum Shooting Center of Colorado Springs, LLC, one of the plaintiffs, has standing to sue Allen because it faces potential prosecution if it refuses to collect the tax, and that the complaint states a plausible declaratory judgment claim against him. Here is the operative language:
“Defendant Allen first argues that Plaintiffs lack standing to bring this action against him. However, Magnum Shooting Center of Colorado Springs points out that it would potentially face prosecution if it refused to comply with C.R.S. §§ 39-37-101 et seq. This threat of possible prosecution is sufficient to confer standing on Defendant Magnum in this action. Furthermore, the complaint states a plausible declaratory judgment claim against Defendant Allen. Accordingly, IT IS ORDERED that Defendant Allen’s motion to dismiss is DENIED.”
Nothing in that language touches the constitutionality of the tax itself. Colorado’s excise tax has not been struck down, and it has not been upheld. The case has simply survived its first serious test, and a defendant who tried to argue his way out of the lawsuit entirely no longer gets to make that argument. That is how constitutional litigation actually proceeds — one procedural hurdle at a time.
The Case and the Statute Behind It
Zachary Langston, Magnum Shooting Center, the Colorado State Shooting Association, the Firearms Policy Coalition, the Second Amendment Foundation, and the National Rifle Association of America filed suit in March 2025 against Heidi Humphreys, in her official capacity as Executive Director of the Colorado Department of Revenue, and against Allen, in his official capacity as District Attorney for the Fourth Judicial District, which covers El Paso and Teller counties. The suit challenges Proposition KK, the 2024 ballot measure codified at C.R.S. §§ 39-37-101 et seq., which imposes a 6.5 percent excise tax on the retail sale of any firearm, firearm precursor part, or ammunition sold in Colorado. Humphreys’ department administers the tax statewide, but Allen was named because his office can prosecute vendors who fail to collect it — the enforcement power that gave Magnum standing to sue him, even though his own office sits in Colorado Springs rather than Denver.
Why a Targeted Tax Is Different From a General One
My position has not changed: a generally applicable sales tax that happens to sweep in firearms along with everything else a state sells is one thing. A tax that singles out a constitutional right for special treatment is another thing entirely, and it crosses a line the Constitution does not permit. The plaintiffs make that argument in their briefing:
“The United States Supreme Court has repeatedly held in various contexts that the exercise of a constitutional right cannot be singled out for special taxation. Colorado’s excise tax singles out the exercise of Second Amendment rights for special disfavored treatment… these precedents independently bar Colorado’s infringement by taxation scheme.”
The complaint also explains why both sides of the transaction are injured:
“Both sides of the transaction will be meaningfully harmed. Vendors will lose valuable business, while individuals will face a tax on the exercise of their legal and constitutionally protected activity.”
That is basic economics. Raise the price of exercising a constitutional right and fewer people will exercise it. Vendors sell less, and buyers who still want to acquire a firearm — the necessary predicate to keeping or bearing one — pay a toll attached to a constitutional guarantee.
The Precedent: Poll Taxes, Ink Taxes, and the Power to Destroy
This is not a novel theory. In Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), the Supreme Court struck down Virginia’s $1.50 poll tax as an unconstitutional condition on the right to vote. In Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), the Court struck down Minnesota’s use tax on the ink and paper newspapers needed to publish, because a tax that targets the mechanics of exercising a First Amendment right is itself a First Amendment violation. Both cases trace back to Chief Justice Marshall’s admonition in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819), that “the power to tax involves the power to destroy.” A right that can be taxed without limit is a right the government can price out of existence.
What Comes Next
Cases like this take years to climb toward the Supreme Court, and Judge McCallin’s order is only the first floor of that climb. But it is the correct first floor. Colorado’s voters may have approved Proposition KK by ballot initiative, but a majority vote does not immunize a law from the Bill of Rights. I expect the Supreme Court eventually to confront whether states can impose special taxes on firearms and ammunition, alongside the AR-15 and semi-automatic rifle litigation already before the high Court. One case at a time, one favorable precedent at a time, the pro-2A record keeps building.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.