New Jersey just enacted one of the country’s most restrictive concealed carry regimes. But it may actually go further than they intended.
Following New York’s lead, New Jersey lawmakers voted on Monday to make the state the second to pass sweeping new concealed carry rules in response to the Supreme Court. By Wednesday, Governor Phil Murphy (D.) signed it into law.
In some ways, New Jersey’s measure goes even further than its inspiration. While it adopted many of the same tactics—including a broad range of locations deemed too sensitive for licensed carry and a default gun ban on private property unless otherwise permitted by the owner—its license application requirements contain a novel provision: a public carry insurance mandate.
According to the text of the legislation, New Jersey residents intent on carrying a gun must “maintain liability insurance coverage insuring against loss resulting from liability imposed by law for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of a firearm carried in public.” The law further stipulates that the minimum coverage required is a $300,000 policy to account for “injury to or death of more than one person and for damage to property, in any one incident.”
The law makes New Jersey the first state to attach an insurance mandate to gun carry. It’s also just the second instance of a government anywhere in the U.S. passing an insurance mandate related to gun ownership. The City of San Jose became the first earlier this year when it passed Mayor Sam Liccardo’s (D.) ordinance requiring any resident who owns a gun to buy liability insurance.
As in San Jose, it remains unclear if such an insurance policy even exists or would be legal to provide. That’s because most states prohibit insurance companies from covering criminal acts, and most existing insurance policies explicitly contain exceptions for illegal or intentional conduct. That leaves a narrow band of possible conduct that New Jersey could hope a company would provide insurance against.
Industry experts in the state have already cast doubt on the feasibility of the mandate. Gary La Spisa II, vice president of the Insurance Council of New Jersey, told the New York Times that it would likely be difficult for gun owners to find an applicable policy.
“I can’t really say on the record if anyone would jump into the business,” he said.
The lack of a clear availability of such a policy raises real issues because the law made having insurance a pre-condition to even apply for a carry permit.
“The permit shall be issued to the applicant […] if, but only if, the chief police officer or superintendent determines that the applicant: […] is in compliance with the firearm carry liability insurance requirement of section 4,” the bill’s text reads.
That creates an apparent catch-22 for New Jersey gun owners. Unless they can obtain an as-of-yet non-existent insurance policy, they will have no legal way to exercise their Supreme Court-affirmed right to carry a firearm.
To be sure, this future scenario is not a certainty. The insurance provision of the law does not take effect until July of 2023, leaving the state time to work with insurance providers to come up with some tenable policy options to satisfy the requirement. In San Jose, for example, the Mayor has claimed that standard homeowners’ and renters’ policies satisfy the city’s gun-owner insurance mandate.
However, New Jersey may have a harder time finding a legal insurance policy that fits its intentions. While it’s plausible that homeowners’ insurance would cover activity surrounding gun ownership inside the home, New Jersey’s mandate specifically requires coverage for public activity. It would be quite a stretch to argue that homeowners’ policies would cover public gun carry, let alone intentional or criminal acts with that gun resulting in public harm to others.
The only closely related policy to the one New Jersey has in mind would be the self-defense insurance offered by companies like the United States Concealed Carry Association or U.S. Lawshield, which provide funds to hire a lawyer after an act of lawful self-defense. Yet, a 2019 Executive Order from Governor Murphy explicitly directed the state’s Division of Banking and Insurance to prohibit the sale of those types of policies because they “encourage firearm use.” The state also secured a $1 million fine from the insurance provider behind the NRA’s version of the product it offered to New Jersey residents.
It’s unclear how the very same administration that banned plans covering lawful acts of firearm self-defense will be able to turn around a few years later to offer a policy covering “injury” and “death” from “use of a firearm carried in public.”
It’s also possible that the state will be spared from ever having to identify a workable policy by a judge striking down the law altogether. Two separate lawsuits have already been filed against the law—one from the Association of New Jersey Rifle & Pistol Clubs (ANJRPC) and the other from the Second Amendment Foundation, Firearms Policy Coalition, and two other New Jersey-based gun-rights groups.
The suits primarily focus on the vast array of “sensitive places” and private property restrictions contained in the law rather than the current unworkability of the insurance requirement, but that still could be enough to see the law blocked. After all, multiple federal judges in New York have already granted preliminary injunctions against New York’s nearly identical bans.
At the same time, the courts may not prove to be a saving grace for the state’s gun owners. In New York, those early injunctions against the state’s gun-carry restrictions have been consistently stayed by the Second Circuit, leaving in place a law that has broadly been found unconstitutional by multiple judges. The Third Circuit may play a similar role in the challenges to New Jersey’s law, assuming the district judges rule against the state.
If the legal challenges to New Jersey’s law are similarly slow-walked, the insurance mandate could ultimately be allowed to take effect on schedule.
Additionally, the ANJRPC suit is the only challenge thus far to take aim at the insurance requirement, briefly arguing that it lacks a historical analogue. While that claim may be enough to get the provision tossed in court before it takes effect next July, the federal judge who heard a challenge on this topic upheld San Jose’s insurance requirement. Therefore, there’s no guarantee a judge won’t do the same in New Jersey.
If the state can’t find a workable insurance offering and the courts don’t block the law, New Jersey will have effectively outlawed lawful gun carry come next summer.