Last week, in National Association for Gun Rights v. San Jose, a federal judge in California declined to preliminarily enjoin a San Jose ordinance that requires gun owners to obtain and maintain liability insurance and pay an annual fee. The case is significant not only for its discussion of the constitutionality of mandated gun insurance, but also because it includes a lengthy discussion on how to apply Bruen’s new test. (As Andrew has written about here, several courts so far have had to grapple with how Bruen applies to different situations at varying stages of litigation.)
In early 2022, the San Jose City Council enacted a new ordinance, one provision of which requires gun owners to obtain and maintain liability insurance for accidental firearm (mis)use. Another provision requires gun owners to pay an annual “gun harm reduction” fee that is channeled to an as-yet-unidentified nonprofit to be used on services for gun-owning households to help decrease the risk of harm from misuse of firearms. The ordinance provides for an administrative citation for any violation of its provisions. The National Association for Gun Rights challenged the ordinance the same day it was enacted. Although the challenge raises other claims as well, I’ll focus only on the Second Amendment ones.
Before the district court was scheduled to conduct a hearing on the motion for a preliminary injunction, the Supreme Court decided Bruen. That case, of course, jettisoned the two-part framework used by all courts of appeals to consider the question, including the Ninth Circuit. As I’ve written about, Bruen mandates that courts use a history-plus-analogy test that requires the government to justify its regulation with a goldilocks historical tradition—not too old, not too new, but just right enough to satisfy five members of the current Supreme Court.
The district court considered each operative provision of the ordinance in turn. As to the annual fee, the court agreed with the government’s argument that the Second Amendment claim was not ripe because the City had not yet set the fee amount, so the court could not determine whether there was more than a de minimis burden on Second Amendment rights. (Although it’s cursory, I read this part of the opinion as consistent with an understanding that Bruen allows—maybe even requires—a threshold determination about burden to ascertain whether the Second Amendment even comes into play. The court, however, declared later in the opinion that burden analysis comes at the second stage, not the threshold.) The court declined to rule on the merits of the claim. It did, however, suggest that Bruen found certain non-exorbitant fees permissible (there, fees for concealed carry permits).
As to the insurance requirement, the court addressed that claim on the merits. In doing so, it went through the factors for issuance of a preliminary injunction, which require the moving party to show (among other things) a likelihood of succeeding on the merits. To determine whether the plaintiffs were likely to succeed, the court laid out how it understood the Bruen standard. First, said the court, “[t]o determine whether the Second Amendment’s plain text covers an individual’s conduct, courts must  identify and delineate the specific course of conduct at issue.” Second, “[i]f the conduct at issue is covered by the text of the Second Amendment, the burden then shifts to the government to show why the regulation is consistent with the Nation’s historical tradition of firearm regulation, specifically the periods closest to the adoption of the Second Amendment (1791) and the Fourteenth Amendment (1868).” It’s worth pausing here to note that, as I’ve numbered them, the Bruen test is really just a different two-part framework than the one the courts of appeals had been using; it still requires a determination of coverage and then a conclusion about protection. All that’s (really) changed is that the test for protection is now a history-only test instead of means-end scrutiny. In addition, the court’s language here about burden-shifting at the history stage suggests that it reads Bruen to put the burden on the claimant at the initial step.
At Bruen step one, the court expressed some lack of confidence about how to define the conduct at issue to determine whether it was protected by the Second Amendment’s text. Ultimately, it settled on defining the conduct as owning a gun without liability insurance. Applying what it called “the ‘plain text’ prong of the Bruen analysis,” the court concluded that such conduct likely satisfies the test and is within the amendment’s scope. It declined to assess “the degree to which Plaintiffs’ Second Amendment rights have been burdened” at this stage, calling that a second step question. (I think this is a plausible reading of Bruen, but I have a hard time seeing the value/coherence in a test that doesn’t look to see whether there’s a burden on the protected right at all, at a threshold level.)
Next, the burden shifts to the government on “the ‘historical tradition’ prong of the Bruen framework.” And here, the court concluded the government had carried its burden. Among the laws the City invoked, the court found several to be distinguishable and thus not analogous: dangerous animal laws, loyalty oaths, and gunpowder storage laws. On the latter, it noted that those laws shared a similar purpose as the insurance requirement but “the regulations themselves were often specific to gunpowder and not easily translatable to firearm regulations.” The City also invoked “19th century surety statutes,” laws which Bruen itself spent several pages addressing. The court ultimately said these surety laws were sufficiently analogous to support the insurance requirement. Although there were some differences, the court found those irrelevant to the Bruen analogy questions—burden and justification. Noting that Bruen does not require a “dead ringer” historical law, the court found “substantial overlap” as to the relevant Bruen factors and emphasized that surety laws were part of a longer “‘historical tradition’ of shifting the costs of firearm accidents from the victims to the owners of the implicated firearms.”
I suspect this isn’t the last we’ll see of this case. As one of the first cases to consider how Bruen impacts a claim right from the start, it’s a good example of how lower courts are likely to read the opinion. As a methodological matter, I think the court was right to separate the Bruen inquiry into two steps: (1) “the ‘plain text’ prong of the Bruen analysis,” followed by (2) “the ‘historical tradition’ prong of the Bruen framework.” Other federal judges have already divided the Bruen test in this manner, and it wouldn’t be surprising to see more courts do so. As a substantive matter, the court does seem to be more generous in its assessment of analogies than Bruen was. Surety laws no doubt bear similarities to the insurance mandate, but one can just as easily recite the differences. One chief complaint about Bruen, of course, is that it leaves courts very little guidance about how to do this inquiry. Even if gun-rights proponents (or gun-rights justices) disagree about this application, it’s hard not to put the lion’s share of the blame for that on Bruen itself.