DOJ Now Targeting Another Bizarre California Gun Law

The DOJ’s Civil Rights Division has already successfully gone after the Los Angeles Sheriff’s Department over its unreasonable delays in processing concealed carry applications and recently targeted San Jose, California over its excessive fees for concealed carry permits, but now the division is seeking to strike down another local law on the books in San Jose. 

The Justice Department filed its first complaint against the city’s $1591 application fee a couple of weeks ago, but on Tuesday the agency filed an amended complaint this week that challenges San Jose’s requirement that concealed carry applicants undergo a psychological evaluation as part of the application process as well as the city’s requirement that all gun owners have a liability insurance policy. 

Beyond financial barriers, Defendant also subjects applicants to psychological testing to determine whether an applicant is worthy of exercising his or her Second Amendment rights. Defendant, of course, lays the cost of this evaluation at the applicant’s feet. The psychological testing requirement is set forth in a SJPD policy. California state law does not require such testing. Nor is the testing requirement in San Jose’s municipal code. 

While there is a history and tradition of disarming people who have been shown to have mental illness, that history is not analogous to preemptively screening everyone for a vague and unspecified psychological condition that makes them unsuitable to carry a firearm.

San Jose requires anyone who owns or possesses a firearm to maintain an insurance policy that covers “losses or damages resulting from any accidental use of the firearm, including but not limited to death, injury or property damage.” The same ordinance requires firearm owners or possessors to pay “an Annual Gun Harm Reduction Fee to the Designated Nonprofit Organization each year.”

The DOJ acknowledges that those regulations have been upheld by a federal court, which found the insurance requirement and third-party fee does not implicate the plain text of the Second Amendment. The agency contends, though, that the earlier decision has essentially been nullified by the Supreme Court’s language in Wolford and that the court should revisit the issue. 

The regulations in question clearly place conditions on both the keeping and bearing of arms, so how the court ever concluded that they don’t implicate the text of the Second Amendment is beyond me. And since the text is implicated, then San Jose should have to justify its mandatory psych evaluation, insurance requirement, and “Gun Harm Reduction Fee” by pointing to earlier laws in our nation’s history that had roughly the same “how” and “why.” 

San Jose won’t be able to do so, of course, because there is no widespread and longstanding tradition of imposing insurance mandates, psychological testing, or third-party fees on gun owners. San Jose might point to 18th and 19th century surety bonds, but those were never universally imposed. Individuals who were believed to be a greater risk when it came to violence were forced to post a bond before they could carry, but those bonds were never required of everyone who wanted to do so. 

The DOJ’s Civil Rights Division and the Second Amendment Section continue to do historically important work in defending our fundamental civil right to keep and bear arms, and I’m glad to see the suit against San Jose is expanding to include other infringements beyond the nearly $1600 applicants have to fork over when applying for a carry license. None of these provisions can survive any real Second Amendment scrutiny. Unfortunately, there’s no guarantee that scrutiny will take place in the district court or the Ninth Circuit. 

Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.

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