San Jose adds $1000 fine to gun owners insurance mandate

San Jose adds $1000 fine to gun owners insurance mandate
Don Petersen

Gun control activists and anti-gun politicians are getting pretty creative in their attempts to prevent responsible Americans from exercising their Second Amendment rights, though their efforts aren’t getting any more constitutionally-sound.

In San Jose, city council members have decided to up the ante on their requirement that legal gun owners purchase liability insurance by tacking on a $1000 fine for repeat “offenders” discovered in possession of a firearm without an insurance policy; a decision that one 2A group already suing the city calls atrocious.

“San Jose is hell-bent on disarming law-abiding gun owners anyway possible, at least as far as they can get away with in the courts,” wrote NAGR’s Policy Director Hannah Hill. “And a $1,000 fine for simply exercising your God-given right to keep and bear arms unless you bow down, buy insurance, and kiss their ring is simply atrocious.”

She added, “That’s why we’re suing to overturn this unconstitutional ordinance, and we look forward to rescuing law-abiding San Jose gun owners from these greedy, anti-gun council members.”

The penalties passed on Tuesday escalate for each offense. A gun owner’s first and second violation will cost them $250 and $500, respectively. A $1,000 fine will be levied against a third and any future infraction. The city’s police department will be in charge of enforcing the fines.

“City staff is moving forward with regulations needed to implement this first-in the-nation law to reduce gun deaths and injuries with a careful, balanced approach,” the mayor wrote in a statement. “I look forward to seeing this up and running next year.”

The “careful, balanced approach” that Liccardo mentions includes exemptions for some San Jose gun owners, including law enforcement, those with concealed carry permits, and “low income” residents. Everyone else exercising their right to keep a firearm in the home for self-defense, on the other hand, will be expected to comply with the new law.

While city officials insist that this law will be upheld by the courts, it seems to me that the ordinance flies in the face of the Supreme Court’s test laid out in the Bruen decision; the law must comport with the plain text of the Second Amendment as well as how it’s historically been exercised (and regulated), particularly at the time the Bill of Rights and the 14th Amendment were ratified. I’m not aware of any longstanding laws in 1791 or 1868 that required the vast majority of legal gun owners to purchase an insurance policy before they could own or carry a firearm, though the federal judge overseeing the lawsuit against San Jose compared the city’s insurance mandate to 19th century “surety” laws when she declined to issue an injunction blocking the new law from taking effect.

That comparison ignored what those surety laws were all about, however, as Justice Clarence Thomas made clear in the Bruen opinion. From page 5 of the majority opinion:

In the mid-19th century, many jurisdictions began adopting laws that required certain individuals to post bond before carrying weapons in public. Contrary to respondents’ position, these surety statutes in no way represented direct precursors to New York’s proper-cause requirement. While New York presumes that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.” Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee.

Those surety laws were aimed at the bearing, not the keeping, of arms. Beyond that, they weren’t imposed on every gun owner who wanted to carry for self-defense. Instead, they were required only for those who had been “reasonably accused of intending to injure another or breach the peace.”

San Jose’s insurance mandate, on the other hand, applies to almost every legal gun owner who lives inside the city limits, and subjects them to penalties for keeping a gun in their home unless they’ve first purchased an insurance policy that covers accidental misuse of a firearm. That’s nothing like those surety bonds that the judge cited as an historic analogue, and I suspect that San Jose’s mandate won’t survive court scrutiny… at least once the case moves beyond the borders of the Ninth Circuit Court of Appeals. With New Jersey also seeking to impose insurance mandates on concealed carry licensees, this is an issue that could soon be ripe for review by the Supreme Court, and hopefully another legal smackdown as well.