U.S.A. –-(AmmoLand.com)- A California-based gun rights group has filed a federal lawsuit challenging an ordinance adopted by the City of San Jose earlier this year requiring gun owners in the city to obtain liability insurance and pay a fee to have guns in the city.
The complaint was filed in the U.S. District Court for the Northern District of California by the Firearms Policy Coalition and a private citizen, Christopher Glass. The case is known as Glass v. City of San Jose. Plaintiffs are represented by Bradley A. Benbrook and Stephen M. Duvernay of Benbrook Law Group, and David H. Thompson, Peter A. Patterson, and Joseph O. Masterman of Cooper & Kirk, PLLC.
The 17-page lawsuit alleges the city’s fee requirement violates the First and Second Amendments.
“The government may not impose a fee on the choice to exercise a constitutional right,” the complaint says. “But that is exactly what the Ordinance does. The government also may not restrict firearm ownership in ways that are wholly unknown to the Nation’s history and that fail entirely to advance the government’s asserted goals. Novelty is not a virtue here, and neither are restrictions for restriction’s sake. But the Ordinance is concededly novel, and it will neither improve public safety nor reduce the costs of gun violence. It will only burden those who already follow all firearm laws.”
The complaint further alleges, “The Ordinance directs the City Manager to designate a nonprofit organization that will spend firearm owners’ money on ‘programs and initiatives’ to ‘mitigate’ the supposed risk of the ;possession of firearms.’…The fee provision thus forces firearm owners to associate with an organization of the City’s choosing and subsidize expressive activities of the organization’s choosing, in violation of the U.S. Supreme Court’s ruling in Janus v. American Federation of State, County & Municipal Employees.”
The city, led by anti-gun Democrat Mayor Sam Liccardo, adopted the insurance mandate and gun fee in January. In an Op-Ed published by the Los Angeles Times, Liccardo asserted, “Requiring every gun owner in my city to carry liability insurance will better compensate unintentional shooting victims and their families for medical and related expenses. More importantly, insurance can also incentivize safer gun ownership. 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.”
But buried in the text of the lawsuit is a reference to a case from Pennsylvania that may put Liccardo’s scheme on the spot.
“The government ‘may not impose a charge for the enjoyment of a right granted by the federal constitution’,” the lawsuit states, referring to the Supreme Court ruling in a 1943 case known as Murdock v. Pennsylvania (319 U.S. 105, 113). “But that is what the Ordinance does. The annual fee operates as a charge for the privilege of exercising a fundamental right. The insurance requirement effectively does the same, as do any ‘cost recovery fees’ that the City might impose on firearm owners under (the new law). The Ordinance is unconstitutional for this reason alone. The fee and insurance provisions are further unconstitutional because they impede the right to keep and bear arms protected by the Second Amendment.”
This could be a critical point, because it essentially says rights are equal since the Murdock case was a First Amendment issue. Protecting the right to keep and bear arms is just as important as protecting the right of free speech and religion. Translation: A right is a right.
Liccardo, in his Op-Ed, didn’t seem to understand that principle.
“Imposing a modest annual fee on gun owners can support underfunded domestic violence and suicide prevention programs, gun-safety classes, mental health services and addiction intervention,” he wrote at the time.
But that’s not allowed under the constitution, the lawsuit asserts. A few lines later, Liccardo seemed to understand this, “Gun rights advocates argue that gun owners should not have to pay a fee to exercise their constitutional right to bear arms. To be sure, the 2nd Amendment protects the rights of citizens to own guns, but it doesn’t require the public to subsidize gun ownership.”
With that statement, Liccardo abandoned any argument he might have made that he adheres to the Second Amendment, because he holds every gun owner responsible for the criminal acts of people who misuse guns., and he further admitted criminals won’t obey the ordinance, anyway.
“Critics say that criminals won’t obey insurance or fee mandates — and they are right,” Liccardo acknowledged. “But these ordinances create a legal mandate that gives police the means for at least the temporary forfeiture of guns from dangerous law-breakers.”
Here, again, he lumps all gun owners in with criminals, asserting they are “dangerous law-breakers” because they refuse to pay a fee or obtain liability insurance in order to exercise a fundamental right.
“The fee and insurance provisions directly and substantially burden the core Second Amendment right to possess firearms for self-defense and other lawful purposes,” the lawsuit contends.
Plaintiffs want the court to declare the San Jose ordinance “unconstitutional on its face.” The goal is to “permanently (prevent) the City of San Jose and its agents from enforcing the Ordinance.”
If San Jose is allowed to get away with leveling an ownership fee and insurance mandate on gun owners, other cities will almost certainly adopt similar requirements. That is almost guaranteed after Washington State’s Supreme Court smacked down a safe storage ordinance in the City of Edmonds—essentially nullifying a similar requirement in Seattle—in a landmark preemption case filed by the Second Amendment Foundation and National Rifle Association, and municipal anti-gunners will be looking for other ways to attack gun owners.
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About Dave Workman
Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.
