A pair of Smith & Wesson handguns on display at SHOT Show 2022
A pair of Smith & Wesson handguns on display at SHOT Show 2022 / Stephen Gutowski

Analysis: How Will San Jose’s Gun Ownership Tax, Insurance Requirement Play Out? [Member Exclusive]

San Jose, California was the first city to ever mandate gun owners pay an annual tax and carry liability insurance. It’s already facing a legal challenge with more being primed. So, how will it all turn out?

There are a few scenarios. The ordinance could get shot down immediately in court and abandoned by the city. It could survive scrutiny and multiply across deep-blue jurisdictions. Or it could set off a fight that goes all the way up to the Supreme Court.

We’ve seen the first two outcomes a number of times in recent years.

Los Angeles tried to force out city contractors who were members of the NRA or did work for them back in 2019. San Francisco quickly followed suit. But, after a federal judge struck down the ordinance as unconstitutional, both cities gave up on the idea altogether.

This seems like the most likely outcome. This is a novel law that tries to levy a tax and insurance requirement directly on the exercise of a constitutional right. San Jose officials argue this is necessary to offset and prevent gun violence, but the same logic could be used to justify placing a tax and insurance requirement on publishing or protesting to offset and prevent misinformation or hate speech.

Then there are multiple California gun laws that have made it through the federal court system intact. The unique expansions on the state’s “assault weapons” ban to incorporate devices like bullet buttons and thumbhole stocks, the may-issue carry permit law, and the state’s magazine ban have all passed muster at the Ninth Circuit Court of Appeals without being taken up by the Supreme Court. Even if a lower court strikes down the tax and insurance mandate, as happened with those laws, the Ninth Circuit could very well uphold it on appeal and SCOTUS could ignore it.

That strikes me as unlikely, though.

The Supreme Court does have a long streak of denying appeals out of California. In fact, it’s never taken a gun case from there. But, that’s mostly because of the Court’s general lack of Second Amendment litigation overall. It’s taken six significant Second Amendment cases in its entire history.

However, the Court appears to be eager to expand the case law. It took a gun case in 2020 and, after declaring it moot, it took another one in 2021. It will need to take more if it’s interested in building a coherent approach to the amendment.

Perhaps the new majority of the Court will turn out to be as interested in doing that as Justice Clearance Thomas has been for years. He’s chastised the Court for not doing more to build on the landmark 2008 Heller case, which established the Constitution protects an individual right to keep and bear arms. In a 2020 dissent, joined by Justice Bret Kavanaugh, he decried the court’s “decade-long failure to protect the Second Amendment.”

The San Jose ordinance would be a fairly easy one for the Court to take up because it strikes directly at the heart of Heller. They wouldn’t have to explore a new area of law. Heller dealt with whether the government could restrict people from owning commonly-available guns inside their own home.

The only real difference here is between the burden imposed by a tax and insurance mandate versus an outright ban. One is obviously more burdensome than the other, but it’s likely the Court won’t be favorable to the former either. So, the fight is set up and the only question is how long it lasts.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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