The San Jose City Council voted by wide margins on January 25 to adopt two gun control measures not found anywhere else in the United States.
The first would require gun owners in the city to purchase liability insurance covering losses or damages related to “negligent or accidental use of the firearm,” including death and injury.
The second would further require gun owners to pay a “gun harm reduction fee” to a “designated nonprofit organization.” The City Council will set the fee and designate the nonprofit in a separate resolution. This resolution has not been introduced, but council members at the latest meeting suggested the fee could be $25 per year.
Failure to comply with either ordinance could result in fines and firearm confiscation.
Opposition to both measures has been emphatic. Gun owners, gun rights groups, and San Jose residents have called the laws unjust and wondered how levying fees on gun owners will stop violent criminals. (Homicides in San Jose were up 24% between 2019 and 2020, and even though the 2021 homicide rate dropped down to pre-existing levels, violent crime was still up 10% overall.)
“In my humble opinion, this proposed ordinance seems to punish law-abiding citizens for merely exercising one of their inalienable rights,” San Jose resident John Mancino said in an email to the council.
William Kumler, another San Jose resident, agreed. “This unconstitutional tax on lawful gun owners must be forbidden. There is no reason that citizens who lawfully own guns should be responsible for the actions of criminals who obtain guns through nefarious means,” he said.
While many of the comments sent to the council via email were not from San Jose residents, we weren’t able to find a single comment supporting either ordinance. Looking at comments received via the council’s e-comment system, 143 of the 145 messages opposed both measures outright. At the council meeting itself, an overwhelming majority of witnesses testified in opposition to the laws.
The council nonetheless voted 10-1 to impose an insurance requirement on gun owners and 8-3 to levy a fee. The council must hold one final vote to make the new regulations official, which will take place next month.
Common Sense? Gun control advocates often characterize their proposals as “common sense,” but San Jose’s new measures have been described as both unjust and impractical. Even putting legal questions aside (we’ll get to those in a minute), forcing law-abiding gun owners to pay for the actions of criminals seems like the opposite of common sense to many Americans.
Mark Oliva of the National Shooting Sports Foundation, the gun industry's trade association, likened San Jose’s new requirement to combating illegal narcotics by taxing prescription medication consumers. He also compared the fees to a poll tax.
“San Jose’s mayor and city council are conflating the lawful ownership and use of firearms with criminal actions. That’s beyond unfair,” Oliva told MeatEater. “The problem of criminal misuse of firearms must be addressed not by punishing those who abide by the law, but punishing those who break the law.”
In an editorial for the Los Angeles Times, San Jose Mayor Sam Liccardo dismissed the idea that the annual gun owner fee infringes on Second Amendment rights. Instead, he characterized gun owners as somehow being responsible for the city’s violent crime problem.
“To be sure, the Second Amendment protects the rights of citizens to own guns, but it doesn’t require the public to subsidize gun ownership,” he said. “Every day, taxpayers bear the financial burden of police officers, ambulances and trauma surgeons responding to gun violence. These direct costs of gun violence total $40 million annually for San Jose taxpayers, and $1.4 billion for taxpayers statewide.”
Of course, even if it were true that gun owners in general bear responsibility for gun crime, MeatEater’s Steven Rinella pointed out that other constitutionally protected activities cost taxpayers money.
“Protests sometimes result in violence and property destruction. They lead to lost revenue by businesses. They require expensive monitoring by police. Why should the silent, non-protesting public be asked to foot the bill for those who wish to have their voices heard?” he asked facetiously.
“Our constitutional liberties should not be bought and sold,” Rinella concluded.
As for the insurance requirement, Liccardo justified it as a way to compel gun owners to practice safe gun storage.
“Risk-adjusted premiums will encourage owners to take gun-safety courses, use gun safes, or install child-safe trigger locks to reduce the annual toll of accidental gun harm,” Liccardo said.
Reviewing comments from San Jose residents, the overarching critique is that the fees and regulations are unfair.
Eric Barloewen manages the firearms unit in a local crime laboratory in San Jose. He told the council that the “vast majority” of all gun-related crime is committed by individuals who are already prohibited from owning firearms.
“This proposed ordinance is simply an unfair tax to some of the city's population and will do nothing safety-related except drive good citizens out of our fine city of San Jose,” he said.
Is it Constitutional? Irrational laws sometimes pass legal muster, and right now it’s unclear how the courts will respond to San Jose’s new ordinances. The regulations strike many observers as unconstitutional, but courts have historically supported taxes and fees on guns in certain circumstances.
Alan Gottlieb, founder of the Second Amendment Foundation (SAF), nonetheless believes the proposals are unconstitutional. “These rules have a chilling effect on gun ownership, and that’s what their intent is,” Gottlieb told MeatEater.
The Second Amendment Foundation is currently preparing a lawsuit they plan to file once the measures become law. The suit will attack the San Jose ordinances on Second Amendment grounds, but the SAF will also argue that the rules violate California’s state preemption law.
In general terms, this law prohibits local governments from enacting gun control regulations stricter than those imposed by the state. San Jose’s law is clearly stricter than anything passed so far by the state legislature, and Gottlieb said the preemption angle might be stronger than the Second Amendment angle. He doesn’t believe the legislature is likely to pass a similar law any time soon due to the expense of administering it statewide.
San Jose city lawyers will also have to deal with the fact that, as of January of 2021, no major insurance company offers separate, stand-alone gun liability coverage, according to the Insurance Information Institute. Gottlieb said that if San Jose gun owners are unable to obtain the policies required under the law, gun rights groups could file suit based on the law’s harm to gun owners.
“This is a distinct possibility. At that point, the law would surely bite the dust, period. Because then you could show proof of its harm,” Gottlieb said.
Even if insurance companies do write policies for gun owners, that could still lead to a successful Second Amendment case. If insurance companies require gun owners to lock up their firearms, for example, they could run afoul of the Supreme Court’s ruling that Americans have a right to keep “functional” guns in the home.
“The requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional,” the court ruled in their 2008 decision, D.C. v. Heller.
Based on this ruling, Gottlieb said, an insurance policy along the lines of Liccardo’s description could well be deemed illegal.
What Now? The council must still take one more vote, and at least some council members are skeptical of the new laws. But Kevin Small of the California Rifle and Pistol Association (CRPA) is doubtful San Jose residents can convince the council to change course.
“At the last meeting, the overwhelming majority of people told their city council members not to pass this ordinance, and they passed it anyway,” Small said. He doesn’t see any reason the council will change their tune next month.
That means this issue will be decided in court. Liccardo said he “anticipates a barrage of lawsuits,” and that statement looks to be prophetic. One gun rights group filed a suit even before the laws had been finalized; Gottlieb said the Second Amendment Foundation and the Firearms Policy Coalition will file a suit; and Small said the CRPA will either file an amicus brief or a lawsuit of their own.
Gun owners in other states have reason to watch these lawsuits closely because, as Small explained, gun control laws can quickly spread.
“California and New York end up being ground zero for a lot of these laws to be tried out, and they spread like an infection across the United States if we don’t get it struck down here,” he said.
If you want to get involved, you can submit a comment to the San Jose City Council by emailing city.clerk@sanjoseca.gov.
