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San Jose Tries to Price Working and Middle-class Out of Gun Ownership

Monday, January 31, 2022

San Jose Tries to Price Working and Middle-class Out of Gun Ownership

The only thing gun controllers despise more than Americans owning firearms is working and middle-class Americans owning firearms. Last week, the San Jose, Calif. City Council voted 10-1 to adopt a requirement for gun owners to purchase liability insurance, and 8-3 to adopt a tax on gun owners, despite overwhelming citizen opposition.

The ordinance (File 22-045) would impose several requirements on city gun owners. First, city residents and those who store firearms within San Jose would be required to obtain extensive firearm liability insurance at their own expense. The requirement states,

A person who resides in the City and owns or possesses a Firearm in the City shall obtain and continuously maintain in full force and effect a homeowner’s, renter’s or gun liability insurance policy from an admitted insurer or insurer as defined by the California Insurance Code, specifically covering losses or damages resulting from any negligent or accidental use of the Firearm, including but not limited to death, injury or property damage.

In order to prove compliance with the insurance requirement, gun owners would be required to complete and execute a “City-designated attestation form” under penalty of perjury. Gun owners are required to keep this attestation form where their firearms are stored and take it with them whenever they are transporting a firearm.

Second, in addition to the cost of liability insurance, law-abiding gun owners would be expected to fork over an “annual gun harm reduction fee.” The ordinance demands,

A person who resides in the City and owns or possesses a Firearm in the City shall pay an Annual Gun Harm Reduction Fee to the Designated Nonprofit Organization each year. The date by which payment shall be made annually shall be established in the regulations promulgated by City Manager pursuant to Section 10.32.235. The annual fee will be set forth in the schedule of fees and charges established by resolution of the City Council.

Note that the amount of this tax is not prescribed by statute, but rather, “the annual fee will be set forth in the schedule of fees and charges established by resolution of the City Council.” This means that there is no telling what the tax might be at the time of the ordinance’s passage. Moreover, the amount of this tax may shift from year to year.

Further, the ordinance states that the firearm fee shall be allocated to a “Designated Nonprofit Organization.” It doesn’t take a cynic to suspect that San Jose would use this money finance groups that share their anti-gun agenda.

Those who do not comply with San Jose’s ordinance risk having their firearms “impounded” (confiscated).

Those eligible for certain welfare programs or indigent defense are exempt from the insurance and fee requirement. The ordinance also exempts California Carry Concealed Weapon license holders. Aside from being expensive, as California CCWs are may-issue, this option is foreclosed to many.

San Jose’s ordinance is a blatant attempt to price many residents out of exercising their Second Amendment rights. This move to suppress the exercise of a Constitutional right is all the more galling coming from the so-called “capital of Silicon Valley.”

San Jose is routinely listed among the most expensive cities to live in America. A 2020 article from Bloomberg Businessweek described the city as “extremely expensive” and determined that the city is the worst “bang for your buck” in the U.S. Various metrics put the cost of living in San Jose at 49, 68, and 80 percent higher than the national average. This insurance mandate and fees would place a further burden on the working and middle-class families struggling to survive in this model of inequity.

As a matter of law, the federal courts have consistently held that discriminatory taxes on the exercise of fundamental rights are unconstitutional. The 1983 U.S. Supreme Court case Minneapolis Star and Tribune Co. v. Minnesota Com'r of Revenue addressed a discriminatory use tax on paper and ink consumed in publication. The Court determined that the tax was an unconstitutional attack on First Amendment rights. The Court explained that “A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected.” Such a tax targeted at gun owners, even if disguised as an insurance or fee requirement, would be a similarly suspect attack on Second Amendment rights.

Law-abiding gun owners should take further offense to the fact San Jose’s effort doesn’t even contain the pretense of targeting criminals who misuse firearms. San Jose’s ordinance quite literally cannot apply to criminals who illegally possess firearms.

In Haynes v. U.S. (1968), the U.S. Supreme Court ruled that a felon could not be convicted for his failure to comply with the registration provisions of the National Firearms Act, as doing so would implicate his Fifth Amendment right against self-incrimination. Any requirement that a person acknowledge their possession of a firearm in a formal manner, such as an attestation requirement or payment of a fee, cannot be enforced against those prohibited from possessing firearms.

San Jose’s proposed ordinance now advances to final reading at the City Council’s meeting next month, where they will hold another vote. It has not been posted to the agenda at this time.

The meeting will be held remotely by video conference. For information on participating in the meeting, submitting eComments, or to view the agenda, you may click here. Please email a public comment to [email protected], submit an eComment, and click the button below to contact City Council members and ask them to OPPOSE File 22-045.

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