NOVEL REGULATIONS AND HISTORICAL ANALOGUES: A SAN JOSÉ ORDINANCE TESTS THE BOUNDARIES OF THE SECOND AMENDMENT
By: Toph Beach, Volume 107 Staff Member
On June 23, 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, striking down a New York firearm restriction and pioneering a new test for Second Amendment cases. Under Bruen, gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.” Bruen departed from a test adopted by several circuit courts that included one more step: if the historical record was ambiguous or inconclusive, the Court would determine whether to uphold the regulation by balancing “the regulatory means the government has chosen and the public-benefits end it seeks to achieve.” In essence, Bruen removed the second step of the circuit court analysis, leaving firearms regulations to stand or fall depending on their resemblance to historical restrictions.
Bruen poses a challenge for lawmakers trying to regulate guns in innovative ways. A creative proposal may offer promising solutions to gun crime and violence, but if the restriction is truly unprecedented, it will fail Bruen’s historical test. A recent city ordinance in California, however, suggests that lawmakers may still enact novel gun regulations by creatively analogizing to past statutes.
On January 25, 2022, the City Council of San José, California, enacted the Gun Harm Reduction Ordinance. The Ordinance, hailed in the press as “novel” and “first of its kind,” contains two key provisions. The first is the Liability Insurance Requirement: city residents who own firearms must “obtain and continuously maintain in full force and effect a homeowner’s, renter’s or gun liability insurance policy . . . covering losses or damages resulting from any negligent or accidental use of the Firearm . . . .” The second is the Annual Gun Harm Reduction Fee: San José residents who own firearms must pay a yearly fee of $25 to a “Designated Nonprofit,” whose funds will go to services such as suicide prevention and reduction of domestic violence. Violations of either provision may be penalized by a series of escalating fines, from $250 for the first offense to $1,000 for the third.
Two groups of plaintiffs—the National Association for Gun Rights and the Howard Jarvis Taxpayers’ Association—have challenged the Ordinance, alleging a violation of the Second Amendment. While their combined case was pending in the Northern District of California, the Supreme Court issued its opinion in Bruen, so Judge Beth Labson Freeman asked the parties to brief the court on how she should analyze the Ordinance under Bruen’s historical test. The key question for the Second Amendment claim is whether the insurance requirement and the registration fee are sufficiently analogous to historical gun regulations. If the Ordinance is truly innovative—if no similar regulation existed previously—then it will fail the Bruen test.
In August, the court denied a preliminary injunction against enforcement of the Ordinance, finding historical analogues for the annual fee and the insurance requirement. It found the fee to resemble the cost of obtaining a firearms license, which Bruen declared permissible so long as it was not “exorbitant.” The insurance requirement resembled nineteenth century “surety statutes,” which “required individuals to post, or have a third party post, a bond before they could carry a firearm.” Both the insurance requirement and surety statutes use financial incentives to deter irresponsible gun use without “directly restrict[ing] public carry.”
The court rejected the plaintiffs’ attempt to distinguish surety statutes and the insurance requirement, which stressed that the nineteenth-century bonds were particularized and assessed after a reasonable accusation that the individual had breached the peace, while the insurance requirement applies to all San José residents who own firearms and is not contingent on alleged antisocial behavior. Judge Freeman ruled that, though the requirement to purchase liability insurance would be universal among resident gun owners, the amount paid would “involve a risk evaluation that is tailored to the individual and analogous to ‘reasonable cause’ determinations under surety statutes.”
Judge Freeman has now made two rulings in the combined case: first, she denied the Plaintiffs’ motion for a preliminary injunction; and second, she granted in part the City’s motion to dismiss for failure to state a claim, giving the plaintiffs leave to amend. Both rulings are victories for San José, but there are reasons to be skeptical for the future of the Gun Harm Ordinance. The Second Amendment challenges against the fee and the insurance requirement may both have a second shot.
The claim that the fee violated the Second Amendment was ultimately dismissed because it was unripe: the dollar value of the fee had not yet been set, so the injury to the plaintiffs was too speculative to be litigated. Since then, the City Council has set the fee at $25 and plans to begin enforcement in January 2023. With the ripeness issue resolved, the plaintiffs can reassert their challenge to the fee provision.
The Court also left the door open to further Second Amendment challenges to the insurance requirement. Reasoning that their complaint stated claims under an obsolete framework, the Court allowed the plaintiffs leave to amend consistent with Bruen. However, the plaintiffs have already argued that the insurance requirement fails Bruen’s historical tradition test, and the Court has rejected that argument. Perhaps an amended complaint will offer a more compelling distinction between the insurance requirement and surety statutes, but the plaintiffs’ best bet now probably lies on appeal.
In the two San José cases, the Northern District of California was satisfied that the insurance requirement had an analogue in surety statutes. And that is all Bruen asks for: a historical analogue, not a historical twin. The ongoing Gun Harm Reduction Ordinance litigation is worth watching closely to see how lower courts—and potentially federal appellate courts—apply Bruen’s historical-tradition test to innovative approaches in gun regulation.
 New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2117–18 (2022) (striking down statute that criminalized carrying a firearm outside the home without showing proper cause).
 Id. at 2126.
 Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011); see also United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (applying two-step test from Ezell); Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 415 (4th Cir. 2021) (same).
 San José, Cal., Code of Ordinances § 10.32.200 et seq. (2022).
 San José City Leaders Pass First-of-Its Kind Gun Harm Ordinance, NBC Bay Area, (Jan. 24, 2022), https://www.nbcbayarea.com/news/local/south-bay/san-jose-to-consider-liability-insurance-annual-fee-requirements-for-gun-owners/2787900/ [https://perma.cc/E2RJ-R6EY]); San José Gun Owners To Be Fined up to $1,000 for New Firearm Law, Mercury News (Oct. 18, 2022), https://www.mercurynews.com/2022/10/18/san-jose-gun-owners-to-be-fined-up-to-1000-for-breaking-new-firearm-law/ [https://perma.cc/A6PH-GNUY].
 San José, Cal., Code of Ordinances § 10.32.210.
 Id. at § 10.32.215, 220.
 Memorandum from Sarah Zárate to the San José City Council (Oct. 5, 2022), https://sanjose.legistar.com/View.ashx?M=F&ID=11295898&GUID=C73A3D41-72E6-4F64-8DE2-650873A3C04E.
 Nat’l Ass’n for Gun Rights, Inc. v. City of San José (San José I), No. 22-cv-00501-BLF, 2022 WL 3083715, at *1 (N.D. Cal. Aug. 3, 2022). The lawsuit also alleges violations of the First Amendment, the California Constitution, and the San José City Charter, all of which are bracketed here.
 Id. at *7–8.
 New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2138, n.9 (2022).
 Brief for Brady at 11, San José I as Amicus Curiae Supporting Defendants, 2022 WL 3083715 (No. 66-1).
 San José I, 2022 WL 3083715, at *11.
 Bruen, 142 S. Ct. at 2120 (“While New York presumes that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of reasonable cause to fear an injury, or breach of the peace.”) (citations omitted); Supplemental Brief of Plaintiffs at 4–5, San José I, 2022 WL 3083715 (No. 65) (“In short, the government’s starting point must be that every citizen has a right to possess or carry a weapon, especially in the home, and it can only infringe upon that right once cause has been shown specific to the individual.”) (emphasis original).
 San José I, 2022 WL 3083715, at *11.
 Id. at *12; Nat’l Ass’n for Gun Rights, Inc. v. City of San José (San José II), 220cv-02365-BLF, 2022 WL 4625133, at *5–6 (N.D. Cal. Sept. 30, 2022).
 San José II, 2022 WL 4625133, at *5.
 Gun Owners in San José Could Face These Big Fines, KRON4 (Oct. 19, 2022), https://www.kron4.com/news/gun-owners-in-san-jose-could-face-these-big-fines/ [https://perma.cc/XV8V-YZGJ].
 San José II, 2022 WL 4625133, at *6.
 Bruen, 142 S. Ct. at 2133.