A pistol on display at the 2023 NRA Annual Meeting
A pistol on display at the 2023 NRA Annual Meeting / Stephen Gutowski

Federal Judge Upholds San Jose Gun Ownership Tax, Insurance Mandate

San Jose’s first-of-its-kind gun ownership insurance mandate doesn’t violate the Second Amendment, according to a federal judge.

U.S. District Judge Beth Freeman ruled against the National Association for Gun Rights (NAGR) last Thursday. She found the California city’s requirement that gun owners pay a fee to a yet-to-be-determined anti-gun-violence charity group and obtain insurance is constitutional. She ruled the regulations stand up against the Supreme Court’s new history-based test for gun laws and did not infringe on residents’ rights.

“The City has demonstrated that the Insurance Requirement is consistent with the Nation’s historical traditions,” Judge Freeman wrote in NAGR v. San Jose. “Although the Insurance Regulation is not a ‘dead ringer’ for 19th century surety laws, the other similarities between the two laws would render the Ordinance ‘analogous enough to pass constitutional muster.’

The ruling is a win for gun-control advocates who are looking for ways to restrict firearms even in the wake of 2022’s New York State Rifle and Pistol Association v. Bruen. It allows the city to continue to attempt to implement its unique requirements, which have been scaled back significantly from when they were first introduced. The decision also boosts the odds that lawmakers in states, such as New Jersey, who’ve sought to copy the restrictions might survive court challenges as well.

Judge Freeman, an Obama appointee, also ruled the gun ownership fee was not a tax for the purpose of California law and did not need voter approval because it goes to a non-profit rather than the government.

“Because the City Manager has not promulgated regulations identifying the Nonprofit’s activities, the Court cannot determine if the Fee would fund any expressive activities and thereby remains unfit for judicial determination,” she wrote. “Additionally, Plaintiffs still have not highlighted any hardship they would suffer from the Court withholding consideration at this time. Again, here, the facts are not sufficiently concrete for the Court to apply the First Amendment.”

She further found the fee wasn’t substantial enough to represent an unconstitutional burden on the plaintiffs’ Second Amendment rights.

“The Court determines that the Fee is constitutional,” Judge Freeman wrote. “The $25 amount is by no means ‘exorbitant.’ And the Court notes that there is a financial hardship exemption under which individual for whom compliance would create financial hardship are exempted from the Ordinance. This is not a situation where ‘exorbitant fees deny ordinary citizens their right to public carry.'”

Judge Freeman found the insurance mandate didn’t violate the Second Amendment for several reasons, including the claim that owning a gun without insurance isn’t protected by the text of the amendment. She also argued that, even if the text covered it, historical laws requiring people accused of being dangerous to post a type of bond before carrying a gun in public were similar enough to the San Jose mandate to pass muster.

“Plaintiffs argue that surety laws are distinguishable because these laws imposed a financial burden ‘only after an individual was reasonably accused on intending to injure another or breach the peace,'” she wrote. “The Court rejected this argument in its Preliminary Injunction Order, stating that while NAGR Plaintiffs have identified a fair distinction between surety laws and the Insurance Requirement, the distinction ultimately does not bear upon the metrics identified in Bruen.”

However, it wasn’t all good news for the city. Judge Freeman also said it was too early to rule on whether compelling residents to pay to support the theoretical non-profit violates the First Amendment because the city has yet to find a group to partner with. She ruled plaintiffs could refile once the partnership was secured.

The ruling comes a few months after it was revealed the city has effectively abandoned efforts to enforce the new requirements. After defaulting to an “honor system,” a report from San Jose Inside indicated there hadn’t been a single citation issued to any of the city’s estimated 52,000 gun owners for failing to buy gun insurance.

“Staff has published an attestation form that San José gun owners will use to certify that that (SIC) they have insurance as required by the ordinance (or, alternatively, indicate that they qualify for one of the three exemptions established in the ordinance),” Sarah Zarate, director of the Office of Administration, Policy and Intergovernmental Relations, said in a memo from October. “Gun owners are not required to submit this form to the City—rather, they should complete it and keep it with their guns at all times to demonstrate compliance with the ordinance.”

However, the memo did warn anyone caught with a gun and no papers could be subject to a fine.

The gun ownership fee has yet to be collected either, largely because the city has yet to find a non-profit partner to fund with the program.

But the ruling could reinvigorate the city’s appetite for enforcing its novel ordinance.  Former mayor Sam Liccardo (D.), who was the primary backer of the provisions, previously touted the measure as “a constitutionally compliant path to mitigate the unnecessary suffering from gun harm in our community.” With the win over the combined suit from gun-rights and taxpayer groups alike the city may look to start down that path in earnest given the more solid legal footing. Liccardo repeatedly assured residents that the first-of-its-kind ordinance will pass constitutional muster and save lives.

“Tonight, San Jose became the first city in the United States to enact an ordinance to require gun owners to purchase liability insurance, and to invest funds generated from fees paid by gun owners into evidence-based initiatives to reduce gun violence and gun harm,” Mayor Sam Liccardo said after the vote.

The lawmakers who backed his play may now being to follow through on it.

However, the ordinance is probably not out of hot water yet. NAGR and the Howard Jarvis Taxpayers Association did not respond to a request for comment, but an appeal is still on the table. And the First Amendment claims can be refiled once the fee is put in place.

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


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

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