Mitch Rosen holster (Image courtesy JWT for thetruthaboutguns.com)
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The U.S. Supreme Court’s decision in New York Pistol and Rifle Association, Inc. v. Bruen brings a sea change in the way courts evaluate gun restrictions. Eleven of thirteen circuits have engaged in a two-step analysis to determine the constitutionality of these laws. Employing an originalist framework, the Supreme Court instructed lower courts to engage only in the first step—historical analysis.

Because many regulations cannot be traced directly to the founding, this test will require lower courts to analogize. The selection of an appropriate analogy can be difficult and can affect how a regulation is evaluated. This article briefly discusses: (1) relevant insurance principles; (2) the changed landscape for Second Amendment challenges, addressing difficulties courts face going forward; (3) several proposed laws requiring gun owners to purchase insurance; and (4) whether these laws are constitutional considering Bruen’s mandate. Ultimately, I conclude that an insurance mandate for gun owners is likely unconstitutional. …

Judge Freeman suggests that insurance premiums create a functional equivalent to the surety’s individualized inquiry. “[T]he actual amount of the financial burden (i.e., insurance premiums) involves a risk evaluation that is tailored to the individual and analogous to ‘reasonable cause’ determinations under surety statutes.” Not so. Her decision turns on a mistaken belief that risk-adjusted premiums account for gun ownership and specific ownership behaviors.

Under that hypothetical system, the mandate would be a minimal financial burden on responsible gun owners and a more significant financial burden on high-risk owners. But homeowner’s and renter’s insurance—the most likely policies gun owners would purchase to comply with the mandate—do not account for gun ownership. And contrary to Gilles and Lund’s claim, insurance experts believe insurance companies are unlikely to ever account for these behaviors. 

Risk of loss drives premiums. But the risk of property loss, not a liability determination, has a significant impact on homeowner’s and renter’s insurance premiums. Factors such as age of the home, crime rate, the percentage of owner-occupied homes in the neighborhood, the number of vacant buildings in the neighborhood, and the response time of the fire and police departments drive policy pricing—they have a significant impact on property coverage cost.

Indeed, as discussed above, insurers do not even ask about gun ownership. Rather than risky ownership behavior being deterred, some owners may be priced out of or unable to obtain coverage based on factors unrelated to gun ownership. “The conditions that produce expensive home insurance rates for anyone, regardless of income level, may be exacerbated in low-income areas.”

Homeowners in low-income areas pay, on average, more for insurance than residents in wealthier areas. Insurance fails to replicate the particularized suspicion component of the surety statutes. In light of this difference, it cannot be said that “everyone start[s] out with robust carrying rights” under a broad insurance mandate. The difference in individualized tailoring likely dooms insurance mandates under Bruen, particularly if the penalty for failing to possess insurance has any teeth—loss of the firearm or criminal sanctions.

— Adam B. Shniderman in Gun Insurance Mandates and the Second Amendment

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56 COMMENTS

  1. We all know it: requiring insurance to exercise a civil right is unconstitutional. It is an infringement. For some, the cost of insurance would be an impediment to the right to keep and carry.

    That said, I carry the highest level of insurance the USCCA offers. Why? We have already teetered on bankruptcy due to family medical issues. Cannot afford that risk again due to a defensive gun use.

    • Same here. I am not willing to chance an overzealous DA going after my assets as much as they are. I need to make sure my wife is provided for.

    • I carry the highest level as well, though from CCW Safe because their top tier specifically recognizes and covers for volunteer church security.

    • If you’re “teetering on the edge of bankruptcy” then you are judgement proof. The contingency shyster that takes such cases are not going to try to get “blood from a turnip”. The “overzealous DA” may charge/not charge you based on his/her politics, but he wants to imprison you. Not seize your assets. That is the civil shyster.

      You might need insurance policy/bucks to hire competent lawyer to keep you OUT of jail. Do these policies ACTUALLY perform or are they advertising (as is the case with most legal commercials/ads)?

      • neiowa, Actually there is no such thing as “judgement proof”. If a person is in such “dire straits”, remember in most states (I know a monetary judgement is good for 10 yrs in NYS and can be renewed) judgements are good for a pretty long period of time. Depending on what the judgement is for, it may not be eliminated by bankruptcy. A lot of creditors don’t bother with going for judgements as there is no guarantee of collecting.
        As to the need for insurance, I agree but unfortunately here in NYS they have outlawed such insurance to cover your legal bills. Seems the “Great State of New York” doesn’t want you to be able to get the best possible attorney.

  2. Lol. Let them have their way and when it becomes clear gun owners in Augusta, ME pay a pittance while gun owners in Chicago, IL have to fork over their first born child cries of “muh raycism” will be heard on the ISS.

    Marginalization, poll taxes and red-lining are great as long they only affect your enemies, right?

  4. Insurance mandates should have been doomed under a rational basis evaluation of constitutionality (insurance doesn’t cover the acts ostensibly intended to be funded via the insurance in question – namely, unlawful acts and negligent acts) and also as an unconstitutional poll tax.

    • ‘(insurance doesn’t cover the acts ostensibly intended to be funded via the insurance in question – namely, unlawful acts and negligent acts)’

      Hmm… This probably depends on the unlawful or negligent act in question. Pretty sure that if you drive while intoxicated you are committing an unlawful and negligent act but your insurance company will still be on the hook for the damages you cause, within the policy limits.

      • True, and also true for homeowner’s insurance, BUT there’s a critical difference: Houses and cars are difficult to hide / easy to regulate. The Venn overlap between legal, insured home or car owners and negligence claims is huge; exceptions are a pain, but they are exceptions.

        The overlap between people who are willing to jump through hoops to legally buy guns (much less insure them), and violent felons, is small to negligible.

        • Auto insurance will not likely cover a negligent act with a firearm, ans that negligent act is unlikely to arise out of the ownership or use of the vehicle. Homeowner’s and renter’s insurance liability coverage is much broader.

        • Mark N.,
          Sorry if I was unclear: I wasn’t referring to firearms. I was weighing in in support of the Gov’s point that the form of auto insurance that is mandatory – liability insurance – exists specifically to cover at-fault / negligent acts (with the automobile).

        • Umm… It seems that a drivers license is not a “right” but considered to be a privilege in most states. Ip so facto, the State can require you to have liability insurance but not for “comprehensive” or collision.

      • “Hmm… This probably depends on the unlawful or negligent act in question. Pretty sure that if you drive while intoxicated you are committing an unlawful and negligent act but your insurance company will still be on the hook for the damages you cause, within the policy limits.”

        driving a car isn’t a good analogy.

        1. driving a car isn’t a constitutional right.

        2. driving while intoxicated is already a criminal act and negligent. The reason the insurance is on the hook for it is because that’s how they sold the policy. They aren’t on the hook for it because its a required insurance.

        Sate/government requiring firearm insurance is forcing the firearm owner pay a ‘fee’ so they can exercise a constitutional right. Not only is it unconstitutional, the issue of fee-to-exercise-basic-rights (e.g. poll tax) has been previously settled at SCOTUS as unconstitutional.

        • I agree with your first point, but disagree with the wording of your second.

          Insurance companies don’t cover DUI out of kindness, and certainly not because it’s good business. If it wasn’t mandated (i.e. a voluntary rider, which would necessarily be quite expensive relative to a policy that only covered accidents incurred during responsible driving) the people most likely to use that coverage would be least likely to choose it.

        • Actually, no. The new law in San Jose California calls for liability insurance coverage protecting those injured by “gun violence,” but of course can ONLY cover for the fortunately rare number of negligently inflicted injuries, notwithstanding the fact that the vast amount of medical expense for which the public coffers end up paying are for intentional shootings foe which there can be no insurance coverage as a matter of law. So it doew become a tax on the poor who do not own homes and do not buy renter’s insurance. By the way, the proponent of the law in SJ is an avid anti-gunner.

  5. What two Circuits have failed to adopt the analysis demanded bu Bruen? I’ll guess the Second, any help on the other? I wouldn’t be surprised if it’s the Ninth.

    • The Ninth hasn’t weighed in yet, but at least one district court judge in Oregon doesn’t seem to understand what Bruen requires–or doesn’t care.

  6. If a person wants to buy liability insurance for the use of a firearm, that should be voluntary, just as purchasing insurance to cover legal costs due to self defense should be.
    Here in NYS the latter is prohibited.

    • The state prohibits buying insurance? Or do they prohibit (by regulation) SELLING such insurance?

      • The State is of the position that insurance providing defense costs in a criminal case against the insured is “murder insurance” when it banned the NRA from selling it.

  7. “Because many regulations cannot be traced directly to the founding, this test will require lower courts to analogize. The selection of an appropriate analogy can be difficult and can affect how a regulation is evaluated.”

    it’s not difficult. There were few firearms restrictions in the Founding Era; therefore, just about any law that restricts firearms is unconstitutional.

    • I’m sure the anti-gun will try to come up with something in the 19th century. that effort seems to trending with them now, not successful overall but they try.

  8. I think someone is working too hard to justify things here. An insurance requirement on firearms would be analogous to a poll tax for voters. We don’t require people to purchase insurance to exercise their free speech rights, nor to exercise any other right mentioned in the constitution or the Bill of Rights. Attaching a financial burden to a specific right is and always will be unconstitutional. No need to draw analogs to driving, or home ownership, or any right you might imagine. You can’t tax a right.

    • I don’t see any commenter working to justify a gun-owner insurance mandate, or agreeing with it in any way.

      That said (again, not agreeing with it, just stating facts) not only are many rights taxed including gun acquisition, but TTAG routinely runs articles praising the “benefits” of the tax that singles out / targets our 2A rights.

      • Umm… For your edification such a REQUIREMENT would be an INFRINGEMENT on the Constitutional Right to bear arms. Yes, many things are “taxed”, whoever those things are universally taxed and therefore not unconstitutional. Are you required to buy insurance on the food you eat?

        • Bizarre analogy; as necessary as it is, food is nowhere mentioned in the Constitution (and, as a consumable, couldn’t possibly be insured). Many states do, however, tax it. They also tax property (which is enumerated as a Constitutional right) as well as the only legitimate means to acquire more property. And, again, I agree that mandatory firearm insurance would infringe 2A.

        • Umm… Bizarre analogy my posterior! Food can be most certainly be insured. When a farmer ships his product to market, he can obtain insurance for damage etc. So what is food is not mentioned. Guns aren’t either. The wording of the 2nd Amendment is “arms”. Arms can include bows and arrows, chemical agents (tear gas to you civilians), stun guns (Tasers), etc. ONLY snack type foods are ‘taxed’ and it is not the food that is taxed but the SALE.

        • “When a farmer ships his product to market, he can obtain insurance for damage etc.”

          Usually, once a farmer’s produce leaves his control (IE, his trucks dump it at the local grain elevator, for example) that’s the end of his involvement with the crop. The elevator takes a sample before he dumps it to insure it’s properly dried, and may dock a penalty if the elevator has to run it through a grain dryer in order to meet their spec. That’s a standard arrangement.

          Now, it is typical for a farmer to buy insurance as a part of his farm business, to pay out if a tornado destroys a grain bin full of corn, for example. Or if a hail storm destroys a standing crop, for example. State Farm is a heavyweight in that industry. It isn’t cheap…

        • Sure, trade goods are insurable, whether farm produce or oil tankers – but that has nothing to do with Miss Bev’s original statement about insuring the food you buy for the express purpose of consumption, which is as absurd and impossible as insuring the gas in your car,

          Or his preposterous claim that the Founders didn’t clearly write 2A to protect firearms,

          Or that “ONLY snack type foods are ‘taxed’” – which is simply false in 13 states,

          Or that taxing the sale of food is different from taxing food (WTF else would they do? Install a gas-company meter in your gullet)?

        • Umm… Get a grip, boy. First I never at any time say that the Founding Fathers “didn’t clearly write the 2A to protect firearms”. I really don’t like it when a wannabe misquotes me. I have a red hot news flash for you. When a trucker transports gas, etc, that load is insured. But then what do you know.
          I misspoke when I said only snack type foods are taxed. It seems that your mean at the restaurant is also taxed, as well as some items you purchase in the grocery. I don’t know about “13 states”. To my knowledge I only know of Florida as taxing your purchases at the food store. And even then based on your income they refund some of it based on your income.
          And again, the sale is what is taxed, not the food. Get a grip. I guess you are from the school of thought that a tax is a tax, is a tax? (Rolling my eyes)

        • “When a trucker transports gas, etc, that load is insured”

          Almost exactly what I wrote: cargo can be insured, but items individuals buy for the express purpose of personal consumption (the clear meaning of “the food you eat“) cannot.

          “I don’t know about 13 states”

          Exactly – you don’t know, and don’t care to know. Why exert a mouseclick’s worth of effort to find the facts readily available to all of us when you can just blather incoherently?

        • Umm… you are thicker than a brick wall. Who do you think consumes the food those trucks transport that is INSURED?
          Funny how you did the ole cut and past routine to come up with a response that you wanted. Try reading all of what I wrote? You can ead, can’t you?

        • “did the ole cut and past routine”

          You make it so easy. If I hired a professional scriptwriter or satirist to parody you and paint you in the dumbest possible light, he’d have a hard time coming up with comedy gold like

          “you can ead, can’t you?”

        • Umm…, Like I said, you are thicker than a brick wall. Do yourself a favor and find a new pastime. You are not very good at this one.
          So I made a typo, BFD,
          GET A GRIP, BOY!

        • I’m not very good at debating self-ridiculing buffoons who accuse me of illiteracy while demonstrating illiteracy? Oh, well, it’s amusing anyway.

        • Umm… Seems the buffoon would be you. Apparently you don’t know the difference between a typo and illiteracy. You must be using the Dragon Speech program to type your missives.
          As I said, you are a thick as a brick wall. And about as useful as dacian the DUNDERHEAD and MINOR Miner49er.

    • Totally ridiculous. California was trying to do the same a couple of years ago. Basically, the State does not want you to have the ability to mount a defense to criminal charges without using a PD or selling off all of your assets until you qualify for a PD.

  11. For those who do not understand what ‘common use’ is…

    The Beauty of the Common Use Test and Why It Matters NOW

    https://www.youtube.com/watch?v=k872tSmtitU

    hint… its not a particular style/type rifle like the AR-15….its semi-auto firearms and semi auto firearms are in common use no matter the style/type that are not dangerous AND unusual.

  12. Liability coverage for firearms owners might not be such a bad idea. But mandating it is indeed infringement and could be considered as a tax on an enumerated right. Flip side is just as property taxes are considered legal on a local or state level, such insurance requirements on a state or local level may also be possible.
    However, no insurance company is going to cover damages resulting from criminal use of either illegally obtained firearms, nor cover liability for damages done with stolen property.
    With a few very limited exceptions, you are not liable for damages if your stolen car is used in a criminal act, or for damages done if the same stolen vehicle is involved in an accident.
    If you left a vehicle unlocked with the keys in the ignition and the engine running, in some states you can indeed be held liable for damages.
    And, I can see the same logic used to hold a firearm owner liable for damages if it can be proven the firearm was in plain sight etc when stolen.
    I don’t agree with it, but I can see how such an idea would be exploited.

  13. License Registration and Insurance please.
    “but,but, but, the Right to Bear Arms Shall not be Infringed.”
    I dont know about that, all I know is you cant use this gunm without insurance. Your either going to give it to me or I get to shoot you 57 times.
    Your court date is 4-1-2325 9am
    Kangaroo County Court House.
    You can fight that ticket there or I can shoot you 57 times here, the choice is yours.
    *RING, RING, RING, RING, RING RING, RING, RING*
    Hello Gunm insurance and gunm insurance.
    Oh no, I’m sorry our records show your a high risk gunm owner. Maybe we can get you on the WTF plan, ahhh yes, we can get you plan B for $365 a day, but I cant find any other options.
    Yes gunm insurance is mandatory, No I wouldn’t carry a gunm without it.
    What’s plan B cover? Well nothing really, it just gives you the right to bear arms.
    Ohhh No they haven’t used that constitutional right thing in years. Yes, your correct, You Must Have Permission From Your Government.
    Okay,any other questions?

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  16. I hope it IS declared unconstitutional. I have always thought it would be for carrying/wearing firearms. I have long seen the insurance industry as nothing more than an organized crime syndicate. If folks feel they need it that’s their option but I won’t get any until I find some worth a damn and NONE of them are right now.

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