A handful of cities and states have floated requiring gun owners to carry liability insurance, the same way drivers carry auto insurance. The theoretical constitutional objection to this is real and worth understanding — but the one place this has actually been tried and litigated to a real conclusion, San Jose, has held up in court every time so far, which cuts against the assumption that this kind of mandate is dead on arrival.

What a liability insurance mandate actually requires

The basic model: before purchasing or possessing a firearm, an owner has to show proof of a liability insurance policy covering damages from accidental or negligent discharge, structured similarly to mandatory auto insurance.

The legal argument for it

Proponents frame it as a straightforward cost-internalizing policy — insurance requirements exist for cars, which are also potentially dangerous, and the argument is that gun ownership should carry a comparable financial-responsibility standard rather than putting the cost of accidents on victims or the public.

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The constitutional objection to it

The argument against these mandates: courts applying historical-tradition analysis have generally found no comparable historical analogue for conditioning a constitutional right’s exercise on purchasing a private financial product, which critics argue functions like a tax on a right — a category courts have historically been skeptical of even outside the gun context. There’s also a practical objection: insurers can simply decline to write these policies at all, which would make the right contingent on a private company’s business decision rather than a government process with due-process protections. This is a serious legal argument, made by serious people, and it’s the reason most observers — including this piece, in an earlier draft — expected these mandates to fail in court.

Why San Jose’s ordinance has survived, so far

San Jose passed the first ordinance of this kind in the U.S. in 2022, requiring gun owners to carry liability insurance and pay an annual fee to a designated nonprofit. Gun-rights groups sued immediately. A federal judge declined to block the ordinance while the case proceeded, then granted the city’s motion to dismiss the core constitutional claims in 2023, and the challenge was rejected again on appeal. As of this writing, San Jose’s ordinance is still in effect and has not been struck down at any stage.

Part of the reason appears to be structural: San Jose framed the requirement as a fee-and-insurance scheme administered through a public-safety nonprofit rather than as a direct precondition enforced by a private insurer’s yes-or-no decision — a narrower target than the version of the policy critics argue against in the abstract. That distinction hasn’t been tested by the Supreme Court, and a single ordinance surviving in one circuit doesn’t mean the broader constitutional question is settled nationally. But it does mean the confident claim that “these mandates always lose” is no longer accurate — the most-litigated real example says otherwise, at least for now.