San Jose hit with second lawsuit over new gun control laws

AP Photo/Lisa Marie Pane

The mandatory tax and insurance liability requirements San Jose is imposing on legal gun owners won’t take effect until August of this year, but the lawsuits seeking to overturn the new ordinances are already starting to pile up. The Firearms Policy Coalition launched a legal challenge against the ordinances on Tuesday of this week, becoming the second gun rights organization to try to overturn the new laws before they’re enforced.

San Jose’s gun owner insurance requirement is a “demonstrable attack” on Americans’ right to keep and bear arms, said FPC vice president of programs Adam Kraut.

“Governments cannot run roughshod over the constitutional rights of their people simply because they do not care for the rights they choose to exercise,” Kraut said.

FPC’s lawsuit seeks a judgment declaring the ordinance unconstitutional to prevent the city from enforcing it.

FPC attorneys asserted that the ordinance will not improve public safety, nor reduce gun violence.

“It will only burden those who already follow all firearm laws. Even city officials admit that, ‘of course, criminals won’t obey insurance or fee mandates,’” the lawsuit states.

“It is unfathomable to think that the elected officials of San Jose believed such an ordinance would survive a constitutional challenge, particularly when they admit that criminals will not obey the mandates contained within, leaving only the peaceable people of San Jose to be burdened by the ineptness of its government,” Kraut said.

The lawsuit, known as Glass v. San Jose, argues that not only do the insurance mandate and fee violate the Second Amendment rights of city residents, they infringe on their First Amendment rights as well.

The Ordinance directs the City Manager to designate a nonprofit organization that will spend firearm owners’ money on “programs and initiatives” to “mitigate” the supposed “risk” of the “possession of firearms.”

The fee provision thus forces firearm owners to associate with an organization of the City’s choosing and subsidize expressive activities of the organization’s choosing, in violation of the U.S. Supreme Court’s ruling in Janus v. American Federation of State, County & Municipal Employees.

Mayor Sam Liccardo may not see a problem with forcing gun owners to pay a fee to a third-party group that will be pushing anti-gun talking points, but hopefully the courts will keep SCOTUS precedent in mind as they consider the constitutionality of the city’s new ordinances.

As for the insurance mandate, FPC argues in its filing that it, along with the annual fee on gun owners, is a clear infringement on our right to keep and bear arms.

Neither provision is based in any “historical tradition” of firearm regulation. Heller, 554 U.S. at 626–28. City officials have themselves touted the Ordinance as the first of its kind. See Ex. A at 3. As such, the Ordinance is categorically invalid under Heller.

Even if the Ordinance were instead subject to means-ends scrutiny, it still violates the Second Amendment. The fee and insurance provisions directly and substantially burden the core Second Amendment right to possess firearms for self-defense and other lawful purposes. The Ordinance should therefore be subjected to strict scrutiny. In any event, it is at least subject to heightened scrutiny under the standard currently operative in the Ninth Circuit. See, e.g., United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013). And the Ordinance fails any level of heightened scrutiny.

. Neither the fee nor the insurance provision is tailored, narrowly or otherwise, to the City’s apparent goal of reducing gun violence and its associated costs. As seen above, none of the evidence before the City, and incorporated in the Ordinance’s recitals and findings, suggested that Ordinance would have that effect.

FPC points out that the provisions of the ordinance apply only to legal gun owners, and despite the claims of city officials that the funds raised by the annual “fee” on gun ownership will go directly to fund anti-violence initiatives, the 2A org argues that the funds won’t be used to  “defray any of the municipal costs” of gun-involved crime in the city. Instead the ordinance “singles out already law-abiding citizens to pay for anticipated services that they do not need, that are largely unrelated to safe firearm ownership, and that are thus unlikely to reduce such costs..”

The fee and insurance provisions thus fail to serve their purported purpose. This failure confirms what City officials have already implied: that the Ordinance’s actual purpose is to reduce firearm ownership by increasing deterrent costs, creating a pretext for confiscating firearms and outsourcing firearm regulation to private insurers, apparently in the hope that they will regulate firearm owners in ways that the City is unwilling or constitutionally unable to do itself.

That’s exactly right. San Jose’s ordinances aren’t designed to make life a little harder on violent criminals. The provisions target legal gun owners with pretty severe consequences, including the seizure of lawfully-owned firearms, if they don’t cough up cash to the city (or the third party organization that will collect the fees) and insurance companies for the “privilege” of exercising their Second Amendment rights. It’s akin to a Second Amendment poll tax, and even in California, I’d like to believe this will be a bridge too far for the legal system to condone. But since this is California we’re talking about, it could be a long and winding road to the Supreme Court before San Jose’s anti-Second Amendment ordinance is finally stripped from the local law books.