Is San Jose's New Gun Insurance Mandate More Performance Art Than Actual Policy?

(AP Photo/David J. Phillip)

And yes, I know that the San Jose, California mayor and city council haven’t only approved an ordinance requiring legal gun owners to carry a liability insurance policy but also to pay the city a fee for the “privilege” of exercising a Constitutionally-protected right… but hey, my headlines can only be so long.

I’m also well aware that the courts, even those in California, are likely to strike down these new laws as violations of the Second Amendment. In fact, I’d argue that Mayor Sam Liccardo and the city council members who voted in favor of the new ordinances also realize that these laws aren’t likely to withstand constitutional scrutiny. All of this begs the question; is the city’s latest attack on gun owners more performative than policy-based? After all, there’s no guarantee that gun owners will even be able to find insurance companies willing to underwrite the policies the city is now requiring.

George Mocsary, a law professor at the University of Wyoming, says that San Jose’s proposed gun control policies raise a number of constitutional issues.

It’s highly questionable, he says, if insurers will actually write the kinds of policies that San Jose would require gun owners to purchase. If they don’t, then they would be unable to comply with the city’s mandate, and thus effectively would be prohibited from owning firearms.

“You can’t intentionally ban something indirectly if you can’t ban it directly,” he says, adding that if gun owners were required to pay exorbitant fees or to purchase more insurance than what would be considered “actuarially fair,” that would likely also be unconstitutional.

Mocsary also raises some practical concerns with requiring gun owners to carry insurance, arguing that it could increase the potential for more firearm injuries.

“The best way to incentivize more of an activity is to take away the financial consequences of that activity,” he tells Reason. “If you are taking away from individuals the financial consequences of people being hurt by their guns because their insurance will pay for it, the natural behavior will be for people to take less care.”

Keep in mind as well that while the city council has unanimously approved these ordinances, they have no idea what kind of fee they’ll try to impose on gun owners, or how they’ll insure the availability of the liability insurance policies they’re now requiring. All of those devilish details have been left up to the city attorney’s office to iron out, and the office has a September deadline to do so. Once the specifics have been finalized, the city council will go back and vote again on the ordinances drafted by the city attorney.

It’s possible, though probably a long shot, that the city attorney’s office will come back and say that there’s really no good way to implement these new mandates (or at least the insurance mandate). The more likely scenario is that the city attorney drafts the specific ordinances and the council approves them, but that the laws are immediately challenged in federal court. Heck, if 2A activists can get their case before Judge Roger Benitez, I’d say there’s a decent chance that he’d stay the city’s ordinances from taking effect while the case is being litigated.

That will give Liccardo and his anti-gun allies on the city council another excuse to rail against the “extreme gun lobby” and the gun nuts on the bench who are willing to sacrifice people’s lives by refusing to let their “commonsense gun safety regulations” be enforced. I suspect the mayor will have several chances to give speeches on that same theme as the lawsuit makes its way up the ladder to the Supreme Court, because I don’t think he’s going to have much luck with the legal arguments.

So yes, I think the city of San Jose is engaging in an act of political theater rather than honestly trying to do something to positively impact public safety. What’s sad is that Liccardo and his fellow Democrats appear to be truly convinced that passing a gun control law that will do the most harm to lower-income residents and racial minorities while violating everyone’s constitutional rights is something that will be applauded and rewarded by the Left. What’s even worse is that they’re probably correct.

Dec 04, 2021 11:30 AM ET