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