Adam B. Shniderman (University of Michigan Law School; Winston & Strawn LLP) has posted Gun Insurance Mandates and the Second Amendment on SSRN. Here is the abstract:
On January 1, 2023, a San Jose ordinance went into effect mandating all gun owners in the city purchase 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 accidental use of the Firearm, including but not limited to death, injury or property damage.” Desperate to address the problems of gun violence, several other states, most recently New Jersey, have proposed similar laws. But does an insurance mandate violate the Second Amendment?
This article begins with a brief overview of relevant insurance and insurance law principles. These principles, including risk-adjusted premiums and exclusion for intentional acts are key to determining the constitutionality of gun insurance mandates. The article turns to a discussion of the U.S. Supreme Court’s recent decision in New York Pistol and Rifle Association, Inc. v. Bruen, discussing the positives of an originalist approach and the difficulty that lies ahead for judges examining the nation's history and tradition of gun regulation. Next, this article examines the gun insurance mandates, including San Jose's ordinance and several proposed laws from other states. This article traces the history of the surety laws Bruen and several circuit court decisions before it discussed. This article then examines the key similarities and differences in these surety laws and contemporary insurance mandates. Ultimately, this article concludes that insurance mandates are ineffective and unconstitutional.