San Jose's Insurance Requirement Is Privatized Gun Control

Politicians deputize the private sector to restrict rights protected from the government.

Deputizing private parties to restrict liberty has become popular among politicians constrained by constitutional protections for individual rights. They get to target personal freedom without explicitly restricting anything, like a bratty kid waving his hands around a sibling's face while chanting "I'm not touching you!" The latest such example is the San Jose, California, city government, which insists that it is "constitutionally compliant" in requiring gun owners to purchase liability insurance and to pay an "annual gun harm reduction fee" to exercise a right specifically protected by the Second Amendment.

"Tonight San José 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," San Jose Mayor Sam Liccardo boasted in a January 25 statement. "Thank you to my council colleagues who continue to show their commitment to reducing gun violence and its devastation in our community. I am deeply grateful also to our advocacy and legal partners with Cotchett, Pitre & McCarthy, LLP, EveryTown, Moms Demand Action, SAFE, the Gifford Law Alliance and many others who work tirelessly to help us craft a constitutionally compliant path to mitigate the unnecessary suffering from gun harm in our community. I look forward to supporting the efforts of others to replicate these initiatives across the nation."

There's a lot to unravel in that smug statement, including the assumption that firearms ownership imposes costs and not benefits, as well as the assertion that requiring people to carry liability insurance and pay fees to the government in order to exercise a right specifically enumerated in the Second Amendment is somehow constitutionally compliant. None of what Liccardo says is well-grounded in reality. But he's especially sensitive to the idea that imposing costs on gun owners is an example of government overreach.

"This isn't actually governmental regulation," Liccardo insisted to NPR last week. "This is private sector regulation. This is insurance companies. Insurance companies have been regulating safety of automobiles for five decades, and as a result, we all have seen per mile deaths drop dramatically over the last five decades because we have air bags and anti-lock brakes and so forth that insurance companies incentivize drivers to go buy."

That's a common comparison for gun prohibitionists and it doesn't improve with repetition. For starters "the right to bear arms" enjoys specific constitutional protections, unlike car ownership. Then there's the fact that, like many places, California doesn't require insurance and registration for vehicles used only on private property or transported by trailer. If the Second Amendment didn't protect gun ownership, that might make car insurance and fee requirements comparable to burdens on people carrying concealed weapons, but not to those placed on people keeping guns in their homes and taking them to a range.

Even worse is that automobile regulation is an unfortunate example of how burdensome restrictions can become on activities that don't enjoy specific protection. From tags and taxes we've moved on to inspections and fuel-economy requirements, and now politicians propose mandating interlock technology that prevents vehicles from starting if built-in sensors detect alcohol in our bodies. This isn't a path to follow, it's a warning of what might be in store.

That's especially true when politicians coyly deputize private parties to impose restrictions that they are prevented from putting into law. The San Jose city government's restrictionist agenda is obvious from the list of gun control organizations Liccardo thanks in his press release. The clear assumption is that imposing fees and insurance requirements will create new barriers to owning firearms. Insurance companies may be on-board with that mission, or the heavily regulated industry may just succumb to government pressure to cooperate. This wouldn't be the first time the private sector has been put in that role.

"I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities who often look to them for guidance and support," then-New York Gov. Andrew Cuomo urged in a 2018 statement.

"The NRA alleges that Cuomo and top members of his administration abused their regulatory authority over financial institutions to threaten New York banks and insurers that associate with the NRA or other 'gun promotion' groups, and that those threats have jeopardized the NRA's access to basic insurance and banking services in New York," the ACLU responded. "In the ACLU's view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment."

Leaning on the private sector to lean on people you don't like because politicians aren't allowed to lean on them directly is "constitutionally compliant" only in a brat's "I'm not touching you" sense. It's an end-run around legal protections for the exercise of individual rights.

The problems with requiring people to pay fees and carry insurance to exercise their rights might be more obvious if the San Jose city government had imposed its rules on journalists and bloggers. Liability insurance and annual fees would be obvious infringements of First Amendment rights if smugly imposed as an effort to offset the supposed harms caused by alleged disinformation and misinformation. Then again, Liccardo and company might consider that a clever idea after all.

"In a new trend, many governments have sought to shift the burden of censorship to private companies and individuals by pressing them to remove content, often resorting to direct blocking only when those measures fail," Freedom House warned in 2015. "Local companies are especially vulnerable to the whims of law enforcement agencies and a recent proliferation of repressive laws. But large, international companies like Google, Facebook, and Twitter have faced similar demands due to their significant popularity and reach."

Since then, privatized authoritarianism has only proliferated. We now commonly see demands that companies boot disfavored speakers coming from sources as highly placed as the White House. Politicians who think it's fine to conscript private businesses into muzzling their opponents were never going to balk at drafting those same firms into helping them to disarm the public. Rather than submit, people who care about liberty need to exercise it in defiance of out-sourced efforts at control.