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Gun Insurance Mandates and The Second Amendment

Adam B. Shniderman[1]*

In response to the Supreme Court’s Second Amendment jurisprudence, the federal, state, and local governments have searched for creative solutions to the billion dollar per year problem of gun violence. Their hope is to address gun violence and escape the Second Amendment’s broadening protection of gun rights. One solution pops up frequently—require gun owners to purchase liability insurance. Until recently, no mandate had been enacted. In 2022, San Jose, California, and New Jersey passed laws requiring gun owners to carry liability insurance. But are insurance mandates likely to affect either the incidence of gun violence or the economic burden borne by the government or the victim? And are they likely to escape the courts unscathed?

With NYSRPA v. Bruen as a guiding framework, I dive into both the insurance and constitutional law principles at issue. Proponents argue that insurers will incentivize increased caution through risk-adjusted premiums and actuarial analysis and insurance mandates will avoid violating the Second Amendment. They are wrong—policy exclusions bar coverage for most gun incidents and leave insurers with little incentive to regulate gun-related conduct. And the mandates are unlikely to survive the courts. Following Bruen, courts must examine the text and history, sometimes reasoning by analogy, to evaluate gun regulations. True, historical analysis does not eliminate the problem of judgment—there is still plenty of wiggle room in assessing gun laws. But there are several key features that distinguish surety laws, the most likely analogue, and insurance mandates. And, while the Court has yet to clarify how similar modern analogues must be or what defining features matter most, it seems unlikely that insurance mandates will pass constitutional muster.


Will mandatory insurance coverage for gun owners reduce gun violence and the significant adverse economic consequences of such violence, or will it be declared an impermissible restriction on Second Amendment rights? In response to the Supreme Court’s Second Amendment decisions over the last fifteen years, state and local governments have searched for creative solutions to the problem of gun violence. Liability insurance mandates for gun owners have been proposed in several states and by the U.S. Congress.[2] Until now, none had been enacted. In early 2022, San Jose, California, became the first jurisdiction to pass a law that requires all gun owners to carry insurance that covers gun-related injuries.[3] Later in the year, New Jersey enacted legislation that will require every private citizen who carries a handgun in public to obtain liability insurance.[4] These two laws have garnered significant media attention.[5]

Insurance as conduct regulation is not unique to solving the problems of gun violence. “[S]cholars and policymakers increasingly recognize that insurance not only pools and shifts risks, but also manages and reduces risks by regulating risk-taking behavior.”[6] In some areas, insurers may even have a significant advantage over governments in regulating behavior.[7] But are insurance mandates likely to affect either the incidence of gun violence or the economic burden borne by the government or the victim? Proponents seem to think so.

Professors Jason Abaluck and Ian Ayres contend that gun insurance mandates “would create a several-hundred-billion-dollar incentive for insurers to find ways to reduce gun violence.”[8] And San Jose’s former mayor, who was responsible for the city’s mandate, said the law would “shift the financial burdens from taxpayers and victims, back to gun owners.”[9] But they’re wrong. Such a mandate will do little to reduce gun violence or shift the financial burdens away from the government.[10]

Homeowner’s insurance and renter’s insurance, the two most likely policies gun owners will rely on to meet these mandates, exclude intentional acts.[11] And, over time, these exclusions have grown to include acts that may merely be reckless or negligent.[12] Indeed, some states bar insurers from covering intentional acts via statute or judicial decision, finding that such coverage violates public policy.[13] As a result, insurance will cover only a tiny fraction of gun incidents in the United States.[14] Just three gun incidents in San Jose in the last seven years resulted from accidental shootings involving a victim who was not a member of the insured’s household.[15] And all three resulted in criminal charges, which would likely exclude them from coverage.[16]

Are insurance mandates likely to be among the many laws that courts decide violate the Second Amendment? The Supreme Court’s decision in Heller made clear that the right to keep and bear arms is an individual right.[17] The opinion relied on the Amendment’s text and historical analysis to determine that the District of Columbia’s ban on handguns in the home violated the Second Amendment.[18] Despite Heller’s focus on text and history, courts across the country subsequently applied means-ends scrutiny to assess the constitutionality of myriad gun regulations.[19] The Supreme Court’s decision in Bruen brings a sea of change in the way courts evaluate gun restrictions.[20] Commanding an originalist framework, lower courts now must engage in historical analysis to assess regulations that implicate the Second Amendment.[21] This decision has brought an onslaught of challenges to gun regulations. And many of these regulations are being struck down.[22]

Both proponents and opponents of insurance mandates will point to founding-era surety laws as a useful analogue for determining the constitutionality of gun insurance mandates. These laws provided that an individual could be brought before a justice of the peace upon complaint that he is likely to breach the peace while carrying an enumerated weapon.[23] If the justice of the peace is convinced the accused is likely to breach the peace, he can require a surety of the peace for a sum at his discretion. The “peace bond” would be forfeit if the accused performed some explicitly forbidden act during the surety period.[24] If the person could not post the peace bond, he could be sent to jail for up to six months.[25] Liability insurance does bear some passing resemblance to the surety. But careful analysis reveals significant differences.

Unlike the surety, which was intended to deter bad conduct, exclusions in liability insurance for the insured’s intentional acts mean that insurance is unlikely to deter (or even compensate) the overwhelming majority of gun injuries or deaths. Whether the mandates are struck down will ultimately depend on what courts deem a sufficient degree of similarity. The Court noted that modern analogues need not be a “twin.”[26] “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”[27] What are the relevant characteristics? How different can a modern regulation be under Bruen? These questions are yet to be answered.

Is the juice worth the squeeze? It’s no small problem governments are trying to address. Tens of thousands of people die and are injured by gunshots in the United States every year.[28] According to a GAO report, gun injuries resulted in more than $1 billion per year in hospital costs in 2016 and 2017.[29] Physician costs are estimated to add about twenty percent to that figure.[30] Medicaid and other public coverage sources are responsible for paying more than half of these costs.[31] State and local governments are, unsurprisingly, searching for means to mitigate gun violence and the cost to the public. But governments must contend with the broad scope of the Second Amendment right to keep and bear arms. These laws, which seem to be little more than publicity stunts, will require significant time and money to defend in court when they are ultimately challenged.[32] Given the minor impact insurance is likely to have on gun safety and crime, the downsides significantly outweigh the benefits. Political capital is better saved for solutions that will address the problem and cost of gun violence.

In Part I, I discuss several proposals for gun insurance mandates, including San Jose’s and New Jersey’s recently enacted laws. In Part II, I examine Bruen, including the promises and perils of an originalist approach to the Second Amendment. I focus particularly on the problems of judgment inherent in means-ends scrutiny and whether Bruen has eliminated or merely changed those problems. In Part II, I consider the constitutionality of gun insurance mandates. In this Section, I examine the history of the surety laws, focusing on several key features that distinguish surety laws and insurance mandates. And I end with a few parting thoughts.

Gun Insurance Mandates

Gun regulation has long seemed an intractable problem in the United States. “People are really thinking outside of the box when it comes to these things because the traditional paths to legislation aren’t really viable, especially federally.”[33] Particularly in response to the Supreme Court’s recent opinion, state and local officials and academics have explored alternative methods to reduce gun harm. “One [approach]—long advocated by some economists—is to require gun owners to purchase liability insurance.”[34] That approach garnered significant attention in 2022 as San Jose and New Jersey passed the first laws mandating gun owners purchase liability insurance.[35] Insurance mandates have garnered the attention of legislatures, mayors, governors, and academics. Legislators have periodically proposed mandatory insurance for firearm owners. In 2009, Illinois State Representative Kenneth Dunkin proposed amending the insurance code to require at least $1,000,000 of insurance for “any damages resulting from negligent or willful acts involving the use of [a] firearm” by an individual with a Firearm Owner’s Identification Card.[36] More recently, Illinois House members proposed amendments to the state’s insurance code that would bar excess insurance providers from covering “legal fees, costs, or expenses related to the investigation, indictment, or prosecution of any criminal charge arising out of the use of a firearm.”[37] And the amended code would require individuals seeking a Firearms Owner’s Identification Card to prove that they have coverage for at least $1,000,000 for accidental injuries caused by a firearm.[38] Neither bill became law. By February 2013, insurance requirements for gun ownership were introduced in at least half a dozen states.[39]

And in every New York State Senate session since 2013, Senator Kevin Parker has introduced bills that would require firearms owners to have at least $1,000,000 in liability insurance coverage.[40] In the 2013–2014 session, the proposed bill would have required owners to maintain coverage for both negligent and willful acts involving a firearm.[41] Later versions of the statute included the same requirement until 2019, when Senator Parker’s proposed bill dropped the willful act coverage requirement.[42] Each proposal since would require firearm owners to obtain insurance coverage only for negligent acts.[43] With a sea change in Second Amendment jurisprudence, two insurance mandates have been signed into law.

In early 2022, San Jose became the first city to enact an insurance mandate for gun owners.[44] The law will require firearms owners to 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.”[45] Failure to comply with the law “trigger[s] a report by the police department and may result in administrative citation. Fees start at $250.” Second violations of the law result in a $500 fine. [46] And third offenses, within a year, will result in a $1,000 fine.[47] San Jose’s mayor, Sam Liccardo, noted the high costs of gun violence, including the cost of emergency services, borne by the city’s residents and government as one of the driving forces behind the insurance mandate.[48] That cost, he says, should be borne by gunowners. [49] Liccardo also commented that “[i]nsurance . . . incentivizes safe gun ownership, where risk-adjusted premiums might encourage owners to take gun-safety courses, use gun safes or install child-safety locks.”[50]

In December 2022, in response to the Supreme Court’s decision in Bruen, New Jersey Governor Phil Murphy signed into law new concealed-carry legislation, which includes an insurance mandate that will require “[e]very private citizen who carries a handgun in public . . . [to] maintain liability insurance coverage . . . insuring against loss resulting from liability imposed by law for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a firearm carried in public . . . .”[51] The ambiguous text of the proposed law could be read to require gun owners to purchase insurance that covers intentional, criminal acts involving a handgun. That mandate has already been the subject of a lawsuit.[52]

Those who propose and support gun insurance mandates echo Liccardo’s statements. Their goal is to reduce acts of violence involving guns by changing behavior. Proponents contend that requiring insurance would create incentives that influence the behavior of gun owners in positive ways. For example, Felix Ortiz of Brooklyn, in support of a mandate, stated that requiring insurance would “serve as an incentive for firearm owners to implement safety measures in order to conduct the activity as safely as possible and only when necessary.”[53]

Proponents even believe that “the cost of insurance could affect gun-buying decisions, including whether or not to purchase what those proponents view as more dangerous or safer guns.” [54] And insurers, through risk-adjusted premiums, could promote the safety measures, including trigger locks and gun safes. A theme for proponents is that insurance could be used to reduce gun violence in the same way that insurance has promoted safety in other areas. Many point to auto insurance as a source of inspiration.[55] According to one insurance expert, “insurers have a real incentive to understand the risks, what increases the risk of a car accident, what steps can be taken to reduce it, and then to decide whether they underwrite the cost.”[56] Proponents “hope . . . that insurers will serve a private governance or private regulatory function—private because they can’t tell anyone what to do, they can just make decisions about what to insure and at what price.”[57]

The Second Amendment Post-Bruen

In District of Columbia v. Heller, the Court recognized the Second Amendment was an individual right.[58] Since then, lower courts have grappled with whether various regulations infringe on an individual’s right to keep and bear arms.[59] Following Heller, circuit courts adopted a two-step test to assess Second Amendment challenges.[60] At the first step, a court determines whether the regulated conduct falls within the core of the Second Amendment’s protection. If the regulated conduct is unprotected, then the law is constitutional.[61] The analysis need not go any further. But if the historical analysis was “inconclusive or suggests the activity is not categorically unprotected, the courts generally proceeded to step two.”[62] At the second step, the court “appl[ied] an appropriate level of scrutiny.”[63]

The Court ended the two-step analysis in Bruen. The approach had “one step too many.”[64] The first step largely tracked Heller—courts looked to history to understand whether an activity was unprotected.[65] But the second step did not.[66] Now, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”[67] Thus, lower courts must conduct a historical analysis to determine whether the modern regulation is consistent with the Second Amendment’s text and historical understanding.[68]

Justice Thomas identifies three “situations where the inquiry will be fairly straightforward”—(1)“when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment,” (2) “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional,” and (3) “if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.”[69] But “the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868.”[70] And “the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated” even though “its meaning is fixed according to the understandings of those who ratified it.”[71] Thus, “the historical inquiry that courts must conduct will often involve reasoning by analogy.”[72] But what is the appropriate analogy?

The necessary degree of similarity remains an open question. As Joseph Blocher notes, “[w]hether something is or is not analogous turns entirely on the principle of relevant similarity one employs: the characteristics that matter for the purposes of comparison—or, to use the majority’s phrase, the metric.”[73] Indeed, Justice Thomas notes that “[e]verything is similar in infinite ways to everything else, one needs some metric enabling the analogizer to assess which similarities are important and which are not.”[74] Judgment is going to play a significant role in assessing the historical record and determining the constitutional significance of any similarities and differences between a historical regulation and the modern regulation under review.

Bruen eliminated tiered scrutiny in the Second Amendment context to reduce the role of judges’ policy preferences in assessing gun regulations and to prevent the Second Amendment from becoming a second-class right. Courts treat the tiers of scrutiny as “guidelines informing [their] approach to the case at hand, not tests to be mechanically applied.”[75] The malleability of tiered scrutiny contributes to the view that standards are relaxed for less-preferred rights.[76] In the Second Amendment context, Judge Newsom expressed a similar concern that “[s]uch an amorphous inquiry risks unelected and unaccountable judges upholding or invalidating gun-control laws at will—without respect to the original public meaning of the Second Amendment.”[77] According to Justice Thomas, a turn to text, history, and tradition would reduce the space for subjective judgment to infect a court’s decision.[78] Indeed, Justice Thomas wrote that Bruen’s single-step test is “more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.”[79] True, tiers of scrutiny are judicially created.[80] They “have no basis in the text or original meaning of the Constitution. They emerged as a political solution invented by the justices to navigate internal factions at the Supreme Court, and they do not withstand critical analysis even on their own terms.”[81] And for staunch originalists, including Justice Scalia, using tiers of scrutiny to “displace longstanding national traditions as the primary determinant of what the Constitution means” is illegitimate.[82] But judgment is not eliminated by looking to history, particularly in a contentious area where courts will rely heavily on analogies to modern regulations. As Chief Justice Roberts once noted, an “analogue test” can “launch courts on a difficult line-drawing expedition.”[83] Indeed, Justice Scalia criticized the Court’s analogue test, in another context, because it would “keep defendants and judges guessing for years to come.”[84]

Historical analysis still requires difficult empirical judgments, particularly in the Second Amendment context. Justice Thomas recognizes that “[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.”[85] Similarly, Judge Bybee notes that, particularly “in this area, fraught with strong opinions and emotions, history is complicated, and the record is far from uniform.”[86] We’ve seen this at play in the Second Amendment context already. In Heller, “Justice Scalia and Justice Stevens agreed on a lot—including (apparently) that the original meaning of the Second Amendment provided the standard of correctness. They even agreed on a lot of the decision procedures because, in searching for the Amendment’s original meaning, they turned to the same historical sources.”[87] But they did not reach the same conclusion. Disagreements are sure to happen in future Second Amendment cases.

But as Will Baude and Stephen Sachs note, originalism often does not yield “a single obvious answer.”[88] Indeed, “historical and textual analyses almost always yield uncertain, murky, and disputed answers.”[89] Judges looking at the same history may come to radically different conclusions. As Judge Oldham notes, “[o]ne of the most frustrating practical problems in originalism is that judges can agree on the same standard of correctness—namely, the original public meaning of a constitutional provision—and then differ wildly in their chosen . . . judgment[].”[90] As Judge Bybee notes, judges “are jurists and not historians. That creates the risk that [they] are engaged in Professor Kelly’s ‘law office history.’”[91] The adversarial system induces lawyers to “selectively recount[] facts, emphasizing data that supports the recorder’s own prepossessions and minimizing significant facts that complicate or conflict with that bias.”[92] Indeed, “[l]awyer’s history has been called ‘a stark, crabbed, oversimplified picture of the past, developed largely to plead a case.’”[93] And some historians believe that “[o]bjectivity is . . . at grave risk when history is written for utilitarian purposes,” as it is in legal briefs.[94]

Justice Thomas seeks to allay this concern: “[t]he job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies.”[95] Thus, “[c]ourts are . . . entitled to decide a case based on the historical record compiled by the parties.”[96] Similarly, Judge Bybee “looked to the parties to shape the arguments and call to the court’s attention the appropriate precedents. [The court] . . . also relied on the parties and amici to direct [its] focus to the principal historical sources and any important secondary sources they would like [the court] to consider.”[97] Judge Bybee “tried to be as complete as possible in recounting this history, but [it] is a legal opinion, not a dissertation, so [the court is] likely to fall short in some way.”[98] Similarly, Judge Oldham notes that “[i]t’s easy (and perhaps appropriate) to denigrate ‘law-office history’ . . . but at the risk of sounding impatient or ungrateful, it’s remarkable how few provisions of the Constitution have generated robust historical effort, debate, or agreement in the academy.”[99] And, as he notes, “someone has to do it.”[100] Baude and Sachs note that the task of evaluating historical evidence isn’t any different from the task of evaluating economics evidence or scientific evidence.[101] Judges routinely decide difficult issues that venture outside their expertise.

Judges may lack the resources to conduct these inquiries themselves. Yet they also hear antitrust cases without producing cutting-edge microeconomic research, or decide issues of toxic-tort causation without ever donning lab coats. Their job is to decide cases in light of other people’s discoveries—usually the received view of a profession, formed long before any amicus briefs are due. Law treats history in the same casually omnivorous way it treats everything else.[102]

And “the fact that it’s sometimes hard to find the correct answer—because the history is murky, for example—doesn’t make the correct answer any less correct.”[103]

The Constitutionality of Insurance Mandates

This Essay contends that jurisdictions cannot mandate that owners carry liability insurance for intentional acts, as several states and the federal government have sought to do.[104] Such a mandate requires little analysis of the Second Amendment’s text, history, and tradition. Policies exclude coverage for intentional injury or homicide by firearm.[105] A mandate that individuals cannot satisfy would amount to a de facto ban on gun ownership. And the state cannot ban gun ownership or carrying.[106]

Insurance serves two general purposes: (1) providing indemnity for covered losses[107] and (2) encouraging and assisting in risk mitigation before and after losses.[108] But insurance policies don’t cover all losses. They contain exclusions—“a term in an insurance contract that says that certain types of losses are not covered under the policy.”[109] Losses may be excluded for many reasons—the two most relevant are the family member exclusion and the intentional act exclusion.[110] The family member exclusion “provide[s] that family members can not make claims against the policy.”[111] This exclusion protects against collusive suits.[112] The intentional act exclusion is tied to the concept of fortuity—insurance companies rely on fortuity to make a profit.[113] And fortuity “unravels when the insured has complete control over whether a risk will materialize.”[114] Excluding intentional acts also minimizes moral hazard—“the general problem of individuals and firms failing to take all appropriate measures in terms of increased care levels or reduced activity levels, to minimize risks.”[115] Put simply, the presence of insurance may make insureds less careful.[116] And coverage for intentional acts increases the risk of moral hazard.[117]

True, homeowner’s insurance covers some intentional acts—defamation, trademark and copyright infringement, employment discrimination, wrongful termination, and invasion of privacy.[118] But homeowner’s insurance excludes coverage for many intentional harms, including gun violence. The “HO3” standard-form homeowner’s insurance policy excludes:

“[b]odily injury” or “property damage” which is expected or intended by an ‘insured’ even if the resulting “bodily injury” or “property damage”:

a. Is of a different kind, quality or degree than initially expected or intended; or

b. Is sustained by a different person, entity, real or personal property, than initially expected or intended.[119]

Under a prior version of this “expected-or-intended” exclusion, the liability-producing harm must have been intended, not merely the act.[120] A harm different in kind or degree would have been covered. For example, an insured who fired a warning shot at an individual and accidentally injured the victim would have been indemnified for any judgment against the insured under prior versions of the standard-form homeowner’s policy. But the current language expanded the scope of the exclusion.[121] Now a harm of a different kind, degree, or even to a different person is excluded from coverage. A negligent or reckless act may be excluded, particularly if the court distinguishes between “expected” and “intended.”[122] Courts have allowed insurers to avoid coverage even if the policyholder intended only to scare the victim.[123] Some insurers go a step further—they exclude coverage for harm resulting from criminal acts, irrespective of whether the harm was intentional.[124]

And many states bar insurers from offering coverage for intentional acts.[125] Policymakers reason that wrongdoers should be punished, or at least held responsible, for the intentional harms they cause.[126] “[B]y placing financial responsibility on an insured rather than on the insurance company, the public partially achieves its objectives of punishing and deterring those acting against societal interests.”[127] Criminal sanctions for intentional gun violence represents a significant punishment. But not all intentional tortious acts will also be crimes. States have even sued to stop insurers from selling insurance that may cover intentional acts involving guns.[128]

In 2018, New York brought an enforcement action against the NRA for its Carry Guard insurance policy.[129] That insurance policy “included up to $1 million of insurance protection against civil lawsuits; immediate access to supplemental funds for bail, attorney retainer fees and other criminal defense costs up to $150,000 in criminal liability reimbursement upon acquittal, and automatic protection for a spouse at no extra cost.”[130] According to the state, the policy violated New York insurance law:

The Carry Guard Program . . . provided insurance coverage that DFS finds may not legally be offered in New York excess line market, specifically: (a) defense coverage in a criminal proceeding that is not permitted by law; (b) liability coverage for bodily injury or property damage expected or intended, from the insured’s standpoint, in an insurance policy limited to use of firearms and that was beyond the use of reasonable force to protect persons or property; and (c) coverage for expenses incurred by the insured for psychological counseling support.[131]


The NRA pushed back, claiming that the policy only covered legal gun owners who alleged they used a gun for self-defense.[132] Eventually, the parties reached a consent decree, and the NRA has stopped offering the policy.[133] Washington state fined two insurers, including the underwriter for the NRA’s Carry Guard policy, for violating state insurance laws.[134] The problem, according to a spokesperson for the state’s insurance commissioner, is that “it is illegal in Washington state to insure criminal activity. And there was no clear way for policyholders to pay the insurance company back for legal costs if they were convicted, said Kara Klotz, a spokesperson for the insurance commissioner’s office.”[135]

But at least one regulator is moving in the opposite direction and pushing back on insurers’ expansive reading of intentional act exclusion. The Oregon Department of Consumer and Business Services, Division of Financial Regulation (DFR), has narrowed the scope of the exclusion.[136] The DFR issued a bulletin in May 2022 that prohibits exclusions for negligent or unintentional harms resulting from intentional acts.[137] The DFR concluded that such broad intentional act exclusions “are inconsistent with Oregon Supreme Court authority holding that the exclusions ‘apply only when the insured intended or purposefully caused the specific injury or harm that resulted from the act, as opposed to merely intending the act.’”[138] Under an Oregon policy, if an individual shot at another individual to scare them but the bullet hits the victim and injures them, insurance coverage might be available for any liability judgment.

Choosing the Right Historical Analogue

A more nuanced mandate, one requiring gun owners purchase insurance that exists, requires applying Bruen’s text, history, and tradition test. At some level, insurance mandates seek to address the same societal problem identified in Heller and Bruen—gun violence and the societal costs associated with gun violence. The inquiry is guided by two questions: (1) How does the mandate burden the Second Amendment right?[139] (2) Why is that burden being imposed?[140] Insurance companies have existed in the United States and Britain since the 1700s.[141] But modern insurance mandates do not have direct lineage to the founding era. Courts will have to analogize to determine whether insurance mandates are consistent with the historical regulation of guns in this country. Parties supporting and opposing insurance mandates are likely to point to founding-era surety of the peace statutes as supporting their position on the mandate’s constitutionality.[142] Indeed, one judge concluded that “the mid-19th century surety statutes . . . bear striking analogical resemblances to [San Jose’s] Insurance Requirement.”[143] Courts must consider (1) “whether modern and historical regulations impose a comparable burden on the right of armed self-defense”; and (2) “whether that [regulatory] burden is comparably justified.”[144] Ultimately, whether the differences identified in this Section between founding-era surety laws and modern insurance mandates are significant enough to render mandates unconstitutional is unsettled.

These laws can be traced to the time of King Edward III. The Justices of the Peace Act of 1361 created a position for “one Lord, and with him three or four of the most worthy in the County, with some learned in the Law . . . to . . . restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take, and chastise them according their Trespass or Offence . . . .”[145] The Act also gave the Justices of the Peace the power to “to take of all them that be not of good fame, where they shall be found, sufficient Surety and Mainprise of their good behaviour towards the King and his people, and the other duly to punish.”[146] “While this power was (and is) broad, it is not unlimited, but instead requires a probable ground to suspect of future misbehaviour.”[147]

In 1692, Massachusetts enacted a hybrid law that can be traced to the common law power of sureties of the peace and the Statute of Northampton.


[E]very justice of the peace, . . . may cause to be stayed and arrested all affrayers, rioters, disturbers or breakers of the peace and such as shall ride, or go armed offensively before any of their majesties’ justices, . . . or elsewhere, by night or by day, in fear or affray of their majesties’ liege people, and . . . shall commit the offender to prison until he find sureties for the peace and good behaviour, and seize and take away his armour or weapons . . . .[148]

Just a few years later, Pennsylvania passed a similar act—“an Act about Binding the Peace.”[149] The act provided the basis for subsequent similar acts in the Commonwealth.[150] An action under this law begins with a complaint against the accused by the threatened individual.[151] A warrant is issued, and the accused is brought before the Justice of the Peace.[152] If the justice of the peace is convinced the accused made the threats, and the victim is in actual fear, he can require a surety of the peace for a sum at his discretion.[153] The accused must secure the surety or be jailed.[154] The “peace bond” would be forfeit if the accused performed some explicitly forbidden act.[155]

From 1836 to 1891, similar surety laws, specifically targeting dangerous weapons, were adopted in Massachusetts, Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon, Pennsylvania, and West Virginia.[156]

If any person shall go armed with a dirk, dagger, sword, pistol or pistols, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury or violence to his person, or to his family or property, he may, on complaint of any other person having reasonable cause to fear an injury or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.[157]

If a person possessed one of the enumerated weapons, or any other “offensive and dangerous weapon,” then “any person having reasonable cause to fear an injury, or breach of the peace” could file a complaint.[158] Filing a complaint did not require proof that the person carrying threatened the complainant.[159] The complainant need only show that there was a general threat to the peace.[160] Following the complaint, “a magistrate could issue a warrant for the apprehension of the person accused of threatening the peace.”[161] The accused would be brought before the court.[162] If he could not show “‘reasonable cause’ to fear for himself, his family, or his property, then the magistrate could require the accused to post ‘sufficient sureties . . . to keep the peace towards all the people of this Commonwealth, and especially towards the person requiring such security.’”[163] That is, the accused would pay money to insure against his future conduct. If the accused did not post a surety, he was imprisoned for a term not to exceed six months.[164] And if he breached the peace, the surety was forfeited.[165] But identifying an appropriate analogue doesn’t end the difficult inquiry.

Courts have grappled with and disagreed about the significance of the surety statutes. In Wrenn, the D.C. Circuit struck down the District of Columbia’s good cause requirement for obtaining a concealed carry permit.[166] The Court considered surety laws in its decision. Like the laws considered and set aside in Heller, the surety laws are “akin to modern penalties for minor public-safety infractions like speeding or jaywalking.”[167] As scholars have pointed out, “[t]he Massachusetts Model left Massachusetts (and the other states that adopted it) with no coercive criminal statute actually forbidding individuals from going armed.”[168] Sureties employ a pre-crime, predictive model—a means to prevent crimes, not to enforce violations of the criminal law. And “[t]he Supreme Court has denied that indirect or purely civil burdens shed much light on the historical right embedded by the Amendment.”[169] Thus, even if surety laws had made responsible citizens’ freedom to carry turn on their need for self-defense, these laws would provide little insight into the scope of the Second Amendment. There is also little evidence that these laws were enforced against anyone who peaceably carried.[170] Rather, “[t]hey only burdened someone reasonably accused of posing a threat. And even he could go on carrying without criminal penalty.”[171] The majority concluded that “[u]nder surety laws, put simply, everyone started out with robust carrying rights.”[172]

In contrast, the Ninth Circuit, sitting en banc, upheld Hawaii’s licensing regime.[173] Judge Bybee made much of the same mid-nineteenth-century surety laws, concluding that the “[s]urety of the peace . . . was a substantive restraint on anyone who was the subject of a complaint for openly carrying arms or other dangerous weapons . . . . No one would describe such regulations as akin to modern penalties for minor public-safety infractions like speeding or jaywalking.” [174] The majority concluded that “[t]he possibility of having to respond to such a complaint, much less having to post surety, appears to have been a severe constraint on anyone thinking of carrying a weapon in public.”[175] Some scholars agree.

Eric Ruben, Saul Cornell, and Patrick J. Charles “argue that the surety laws were a descendant of the common law crime of going armed to the terror of the people, which they believe generally prohibited carrying weapons in public because public carry was inherently terrifying.”[176] Ruben and Cornell suggest that these laws “[p]resume that the state’s police power justifies limiting the right to carry arms in public to circumstances in which there is a clear justification, such as a heightened need for self-defense.”[177] In their view, this was emblematic of a broad trend restricting public carry, with limited exceptions.[178] As confirmation, they cite “[Judge] Peter Oxenbridge Thacher, who said in a charge to a grand jury that ‘no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon without reasonable cause to apprehend an assault or violence to his person, family, or property.’”[179] In these cases, Judge Griffith and Judge Bybee relied on the same history. But they disagreed about the burden surety laws placed on carrying firearms in public and the significance of these laws. Even more to the point, judges may not agree on the relevant history.[180]

Applying the Analogy

Surety laws are distinguishable from modern insurance mandates. Insurance mandates impose a greater burden than surety statutes—they are broader in scope and duration. Surety statutes were narrower in several respects. First, surety statutes required an individualized inquiry that broad insurance mandates do not. “[S]urety statutes presumed that individuals had a right to public carry.”[181] They financially burdened only a person who (1) was subject of a complaint that the complainant, or the public, had reason to fear the individual would breach the peace and (2) could not justify possessing an enumerated weapon.[182] And the Court highlighted the temporal aspect of surety laws—“a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace.”[183] San Jose’s insurance requirement, and those proposed in other jurisdictions, is neither particularized nor imposed after an opportunity to be heard. These mandates apply to all gun owners.[184]

In theory, risk-adjusted insurance premiums might create a functional equivalent to the surety’s individualized inquiry.[185] “[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.”[186] Under such a 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. While insurers typically make significant inquiries to accurately determine premiums, homeowners’ insurance providers do not ask about gun ownership, or any questions related to safe gun storage when determining rates.[187] As one researcher noted, “[w]hen you apply for homeowner’s insurance, they will ask whether you have a swimming pool, trampoline or an aggressive breed dog. . . . But they won’t ask if you keep a firearm in your home or how it’s stored.”[188] Florida law prohibits insurers from asking about gun ownership in homeowner’s insurance.[189] And contrary to Gilles and Lund’s claim,[190] insurance experts believe insurance companies are unlikely to ever account for these behaviors.[191] Only a fraction of gun injuries might be covered by homeowners’ insurance.[192] Insurers could offer discounts for safe storage and other practices that could reduce the risk of negligent, liability-producing injuries. “But, given the relatively low cost of the liability insurance portion of homeowners insurance (as compared to the property insurance portion) and the relatively small number of accidental gun injuries,” that seems unlikely to happen.[193]

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.[194] 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.[195] 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.”[196] Homeowners in low-income areas pay, on average, more for insurance than residents in wealthier areas.[197] 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.[198] 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. For example, Illinois’ proposed insurance mandate required revocation of the “Firearms Owner Identification Card” (FOID) if the owner failed to provide evidence of sufficient insurance.[199] And possession of a firearm without such a valid FOID card carries criminal penalties. Under the state’s FOID Act, it “is a Class 3 felony when: (1) the person’s Firearm Owner’s Identification Card is revoked or subject to revocation under Section 8 . . . .”[200] Section 8 of the Act includes cancellation of the individual’s FOID card for administrative reasons, which could cover seizure and revocation for failure to possess the required insurance.[201] Because the law was never enacted, it is unclear how Illinois proposed to deal with this issue. But such a sanction could not be said to be a minor inconvenience—equivalent to a minor fine for speeding or jaywalking.

Second, surety laws proscribed the carrying in public of certain weapons by certain people without providing a surety.[202] San Jose’s mandate, in contrast, exempts individuals with concealed carry permits.[203] The mandate, therefore, impacts the keeping of weapons. The relevance of this distinction is unclear. Justice Scalia noted “that the ‘core’ interest protected by the Second Amendment—that of self-defense—is ‘most acute’ [in] the home.”[204] But Justice Thomas contends that the rights are equally protected—“[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.”[205] But the history of keeping and bearing arms shows some differences. Surety laws only provided a mechanism to prevent individuals who might breach the peace from carrying weapons in public without posting a surety. They provided no similar mechanism to require a surety for keeping arms at home. That distinction suggests a historical difference between the keeping and bearing of arms. And if that is true, whether an insurance mandate is limited to keeping arms like San Jose’s or keeping and bearing arms like New Jersey’s might be of little consequence to the constitutionality of such a mandate. The Court might look to other historical regulations to determine the significance of this distinction.[206]

Third, the “why” of modern insurance mandates is also meaningfully distinguishable from founding-era surety laws. Proponents contend that like surety laws, deterrence justifies gun insurance mandates. One court concluded that “[b]oth regulations share similar, albeit not identical, deterrent purposes: surety laws were ‘intended merely for prevention’ of future harm . . . while [San Jose’s] Insurance Requirement is intended to ‘reduce the number of gun incidents by encouraging safer behavior.’”[207] But the differences in “how” sureties and insurance operate highlight that the “why” is not as similar as proponents contend. Surety laws’ deterrence mechanism is simple. Surety imposed financial costs for breaching the peace. If the accused breached the peace within the specified period, the surety is forfeit. The individual had a financial incentive to avoid committing a proscribed harm. At worst, the opposite may be true for liability insurance. And, at best, because of the little coverage for gun incidents, insurance may have no impact on insureds’ conduct.

There are two schools of thought about whether insurance generally reduces risk of loss, i.e., deters insureds. It has been “[a] basic dictum . . . that insurance does not change the probability of an adverse event—it can only mitigate the financial consequences of the event.”[208] But economists and insurance scholars suggest this may not be true.

Economists contend that the presence of insurance increases the likelihood of adverse events­.[209] This is the moral hazard problem. The presence of insurance induces insureds to exercise less care to avoid losses.[210] Insurance, therefore, indirectly increases the number of losses. On this view, unlike the surety bond, insurance does not provide a deterrent effect—it may even produce an increase in “breaches of the peace.” “Rivers of ink have been spilled in discussing the moral hazard problem of insurance and ways to mitigate it.”[211] But insurance scholars disagree.

Insurance as regulation—eliminating moral hazard—is a common argument among insurance scholars. Kenneth Abraham coined the term “surrogate regulation” to describe the regulatory role liability insurers play in toxic tort and environmental risks.[212] Tom Baker has written about methods insurers use to reduce the risks that they insure.[213] Steven Shavell demonstrated insurers’ ability to create optimal incentives for care.[214] Omri Ben-Shahar and Kyle Logue have suggested insurance is a means for reducing moral hazard as an alternative to government regulation.[215] Superior access to information allows insurers to accurately price policies, assemble insurance pools, and verify claims.[216] But insurers also use superior access to information to provide a lesser-known function—encouraging risk‐reducing behavior.[217] “The same data that goes into the risk spreading and risk shifting computations is relevant and informative in determining how to reduce risk. Insurers, therefore, perform the additional information‐heavy function of identifying and administering a system of safety improvements.”[218] Insurers collect large amounts of information at both the front end and the back end of the insurance process, and they use the information to create incentives for risk reduction.[219] Insurers perform risk reduction in two ways.

First, regulation before a loss includes risk-adjusted premiums, copayments and deductibles, refusal to insure, and coaching safer conduct.[220] Second, insurers have various tools available to engage in ex-post conduct regulation, including claims management, mitigating covered losses, and excluding certain losses.[221] Insurance scholars, therefore, believe that insurance can reduce the risk of loss. But insurance is unlikely to do so for gun owners.

The individualized pre-loss regulation is not present—insurers don’t ask about gun ownership or gun-related behaviors.[222] Premiums are neither risk-adjusted nor do insurers help reduce the insured’s gun-related risks.[223] And even if insurance generally deters loss-inducing conduct, liability insurance covers a limited set of gun injuries and deaths. Recall that insurance excludes coverage for intentional acts.[224] Much of the deterrence, therefore, comes from the threat of criminal punishment or from uncovered judgments the owner would have to pay out of their own pocket. The threat of increased premiums or cancellation of coverage is unlikely to help ensure safe and lawful firearm use. Thus, insurance will have, at best, little effect on the probability of most firearms incidents. The deterrence value, therefore, is substantially less than surety laws.


Federal, state, and local governments are desperate to address the problems of gun violence. Periodically, legislators have proposed requiring gun owners to purchase liability insurance. San Jose, California, and New Jersey enacted such proposals in 2022.[225] San Jose’s then-mayor hoped that insurance would increase gun safety and ease the financial burden of gun violence on taxpayers.[226] But does an insurance mandate violate the Second Amendment?

Bruen changed the landscape for Second Amendment challenges. In line with the Court’s originalist turn, the opinion commands lower courts to assess burdens on the right to keep and bear arms by examining the text of the Constitution and the history and tradition of such regulations. The judicially-crafted tiers of scrutiny carry significant baggage and pose significant challenges for legitimacy and consistency. Applying an originalist framework, for some, alleviates these problems. But Bruen’s mandate does not eliminate judgment and line-drawing from the analysis. Relying on historical analysis to determine the scope of the Second Amendment—a contentious area—comes with its own challenges. The history of gun regulation in America is murky. The courts will have to draw difficult lines about whether a current regulation is analogous enough to one found in the nation’s history and tradition. The Court provided two principles to guide that inquiry: (1) how does the regulation burden the right? and (2) why is the burden being imposed?[227] District courts searching for analogues to answer these questions have had difficulty. Indeed, one court sought parties’ views about appointing an expert to assist the court.[228] But just because a task is difficult doesn’t mean there is not a right answer. And it doesn’t mean the endeavor is not worth attempting.

Applying this framework to gun insurance mandates, the surety stands as the most analogous historical regulation. But these laws are distinguishable from insurance mandates in both “how” they burden the right to own or carry a gun and “why” they are being imposed. Insurance requirements lack individualization. The mandates apply to all gun owners. And premiums are not risk-adjusted. So, unlike sureties, there is little financial incentive to avoid breaching the peace. Ultimately, whether the Court determines that insurance mandates are constitutional will turn on its assessment of the characteristics most important for the right to keep and bear arms. But regardless of its constitutionality, an insurance mandate is likely to do very little to decrease the incidence of gun violence or the burden on the government. Insurance quite simply would not cover much of the gun violence in the United States. And that is unlikely to change.

  1. * The views expressed in this Essay are my own and do not represent the views of my employer. I would like to thank Kyle Logue, Julian Mortenson, Dave Hoffman, and Judge Bybee for their helpful comments on drafts of this Article. I would also like to thank the wonderful editors at the South Carolina Law Review. I appreciate their hard work to get this Article ready for publication.
  2. . Michael Cooper & Mary Williams Walsh, Buying a Gun? States Consider Insurance Rule, N.Y. Times (Feb. 21, 2013), []; see George Moscary, Insuring Against Guns? 46 Conn. L.J. 1209, 1216–22 (2014) (discussing proposals in several states).
  3. . San Jose, Cal., Code of Ordinances §10.32.210 (2022).
  4. . Daniel Han, New Jersey Governor Signs Wide-Ranging Restrictions on Carrying Guns; Legal Challenge Filed, Politico (Dec. 22, 2022),
    /2022/12/22/new-jersey-governor-gun-law-00075140 [].
  5. . See, e.g., Ian Cull, San Jose Establishes Fines for New Gun Law, NBC Bay Area (Oct. 19, 2022), []; San Jose Passes First U.S. Law Requiring Gun Owners to Get Liability Insurance and Pay Annual Fee, CBS News (Jan. 26, 2022), [
    EL-MG23]; Siladitya Ray, San Jose Passes Nation’s First Gun Liability Insurance Law Here’s What It Means, Forbes (Jan. 26, 2022),
  6. . Tom Baker & Anja Shortland, The Government Behind Insurance Governance, 17 Reg. & Governance 1 (2022). 
  7. . Id.
  8. . Jason Abaluck & Ian Ayres, The Case for Mandatory Gun Liability Insurance, Wash. Post (June 17, 2022), [].
  9. . Gun Harm Reduction, City Of San Jose, [].
  10. . Forcing insurers to cover intentional acts could lead to unintended consequences. Insurers may respond in two ways. First, insurers may develop a market for intentional act insurance—collect data, determine the relevant information to ask insureds during the application process, and set rates accordingly. This would require states to eliminate, or at least except gun violence from, prohibitions on indemnifying intentional misconduct. True, states could decide that victim compensation is more important than these prohibitions. But it is unclear whether this would be financially viable. Second, insurers may determine that it is unprofitable to cover intentional acts, particularly gun violence, where tort judgments may be high. As a result, insurers may leave the homeowner’s and renter’s insurance market in that state. Many have done so in Florida where hurricanes, floods, and increased cost of insurance litigation have made offering homeowner’s insurance unprofitable. See Shahid S. Hamid, The Big Reason Florida Insurance Companies Are Failing Isn’t Just Hurricane Risk—It’s Fraud and Lawsuits, FIU News (Oct. 5, 2022), []. 
  11. . See infra notes 86–99 and accompanying text.
  12. . See Moscary, supra note 1, at 1254 n.281 (discussing the connection between mandatory liability coverage and an increase in gun violence).
  13. . See, e.g., Wilshire Ins. Co. v. S.A., 227 P.3d 504, 506–07 (Ariz. Ct. App. 2010) (quoting Transamerica Ins. Group v. Meere, 694 P.2d 181, 186 (1984)) (“[O]ur supreme court has instructed that insurance contracts must be construed consistent with the public policy that ‘forbids contracts indemnifying a person against loss resulting from his own willful wrongdoing.’”); Guar. Nat. Ins. Co. v. McGuire, 173 F. Supp. 2d 1107, 1110 (D. Kan. 2001) (“Kansas recognizes the general rule that ‘an insurance policy is void as against public policy if it is intended to indemnify the insured against liability for his criminal acts.’” (quoting Herrman v. Folkerts, 446 P.2d 834, 837 (Kan. 1968))); Voorhees v. Preferred Mut. Ins. Co. 607 A.2d 1255, 1263 (N.J. 1992) (“[W]e have long held that public policy denies insurance indemnification for the civil consequences of wrong-doing.”); Pub. Serv. Mid. Ins, v. Goldfarb, 425 N.E.2d 810, 814 (N.Y. 1981) (“One who intentionally injures another may not be indemnified for any civil liability thus incurred. However, one whose intentional act causes an unintended injury may be so indemnified . . . .This is so because to allow such indemnity would be to violate the ‘fundamental principle that no one shall be permitted to take advantage of his own wrong.’” (quoting Messersmith v. Am. Fidelity Co., 133 N.E. 432, 433 (N.Y. 1921))).
  14. . See Paige Sutherland & Meghna Chakrabarti, Can Gun Liability Insurance Make Our Neighborhoods Safer?, NPR (Jan. 13, 2023), [] (noting just 1% of gun incidents are deemed accidental).
  15. . Id. at 14:26.
  16. . Id.
  17. . District of Columbia v. Heller, 554 U.S. 570, 595 (2008). 
  18. . Id. at 635.
  19. . See, e.g., Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 117 (3d Cir 2018); Worman v. Healey, 922 F.3d 26, 33, 36–39 (1st Cir. 2019); Libertarian Party of Erie Cty. v. Cuomo, 970 F.3d 106, 127–128 (2d Cir. 2020); Harley v. Wilkinson, 988 F.3d 766, 769 (4th Cir. 2021); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194–195 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019); Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc); United States v. Reese, 627 F.3d 792, 800–801 (10th Cir. 2010); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260–1261, n.34 (11th Cir. 2012); United States v. Class, 930 F.3d 460, 463 (D.C. 2019). 
  20. . See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
  21. . See id. at 2127. 
  22. . See United States v. Perez-Gallan, No. 22-CR-00427-DC, 2022 WL 16858516, at *37 (W.D. Tex. Nov. 10, 2022) (holding statute prohibiting firearm possession by those subject to restraining order related to domestic violence was unconstitutional); Hardaway v. Nigrelli, No. 22-CV-771, 2022 WL 16646220, at *34 (W.D.N.Y. Nov. 3, 2022) (holding a ban on firearms in places of worship is not analogous to Bruen’s recognized sensitive places); United States v. Holden, No. 3:22-CR-30 RLM-MGG, 2022 WL 17103509, at *11 (N.D. Ind. Oct. 31, 2022) (holding a statute prohibiting receipt of firearm by person under felony indictment violated Second Amendment); United States v. Price, No. 2:22-cr-00097, 2022 WL 6968457, at *16–17 (S.D. W. Va. Oct. 12, 2022) (holding unconstitutional a law barring possession of firearm with obliterated serial number); Firearms Pol’y Coal., Inc. v. McCraw, No. 4:21-CV-1245-P, 2022 WL 3656996, at *29–30 (N.D. Tex. Aug. 25, 2022) (enjoining a law excluding 18 to 21-year-olds from Texas’s permitless-carry).
  23. . See Mass. Rev. Stat., ch. 134, § 16.
  24. . Id. §§ 16–17.
  25. . Id. § 4.
  26. . Bruen, 142 S. Ct. at 2133 (emphasis omitted).
  27. . Id.
  28. . Past Years, Gun Violence Archive, [].
  29. . U.S. Gov’t Accountability Off., GAO-21-515, Firearm Injuries: Health Care Service Needs and Costs 8 (2021).
  30. . Id.
  31. . Id.
  32. . San Jose’s insurance mandate has been the subject of several lawsuits. See Complaint at 2, Glass v. City of San Jose, 5:22-CV-02533 (N.D. Cal. Apr. 26, 2022); Complaint at 2, Nat’l Ass’n for Gun Rights v. City of San Jose, No. 5:22-CV-00501 (N.D. Cal. Jan. 25, 2022); Notice of Removal Exhibit A, Howard Jarvis Taxpayers Ass’n v. City of San Jose, No. 22-CV-02365 (N.D. Cal. Apr. 15, 2022).
  33. . On Point, supra note 13, at 16:27.
  34. . Abaluck & Ayres, supra note 7.
  35. . See R.J. Lehmann, Nation’s First Gun-Insurance Mandates Take Effect. Will They Hold up in Court?, Insurance J. (Jan. 2, 2023),
    /blogs/law-and-economics/2023/01/03/701434.htm [].
  36. . H.B. 0687, 96th Gen. Assemb. (Ill. 2009).
  37. . H.B. 5170, 101st Gen. Assemb. (Ill. 2020).
  38. . Id.
  39. . See Cooper & Williams, supra note 1, at 1; see also Moscary, supra note 1, at 1216–22 (discussing proposals in several states).
  40. . See S.B. S4946, 2021–22 Leg., Reg. Sess. (N.Y. 2021).
  41. . S.B. S3853, 2013–14 Leg., Reg. Sess. (N.Y. 2013).
  42. . See S.B. S4868A, 2019–20 Leg., Reg. Sess. (N.Y. 2019); S.B. S2857A, 2017–18 Leg., Reg. Sess. (N.Y. 2017); S.B. S2683, 2015–16 Leg., Reg. Sess. (N.Y. 2015).
  43. . S.B. S4946, 2021–22 Leg., Reg. Sess. (N.Y. 2021).
  44. . Matt Vasilogambros, California City Enacts Nation’s 1st Firearm Insurance Requirement, Stateline (Jan. 26, 2022, 12:00 AM), [].
  45. . San Jose, CA., Code of Ordinances, § 10.32.210 (2022).
  46. . Cull supra note 4.
  47. . Id.
  48. . Id.
  49. . Sam Liccardo, San Jose Mayor: Gun Owner Should Cover the Cost of Gun Violence, Cnn (June 15, 2021), []. Others have similarly cited insurance mandates as encouraging safer behavior. See Moscary, supra note 1, at 1216–17 (discussing sponsors’ statements regarding similar proposals in California and Connecticut).
  50. . Liccardo, supra note 48.
  51. . Assemb. Judiciary Comm. A4769, 220th Leg., 2022–23 Sess. (N.J. 2022). 
  52. . Koons v. Platkin, Civil No. 22-7464, 2023 WL 3478604 (D.N.J. May 16, 2023). Chief Judge Bumb held the New Jersey mandate was unconstitutional, citing a pre-publication version of this Article, for many of the reasons discussed below.
  53. . Chris Eger, Lawmaker Seeks Mandatory $250k Liability Insurance for Gun Owners, GUNS.COM (Oct. 19, 2015, 10:00 AM), [].
  54. . Paul Tetrault, Misconceptions Motivate Bills to Mandate Liability Insurance for Gun Owners, Nat’l Ass’n of Mut. Ins. Cos. (May 2014),
    /1405_gunLiabilityIns.pdf [].
  55. . See Bryan Waldman & Barry Waldman, A Conservative Solution to America’s Gun Safety Problem, Lansing State J. (Dec. 19, 2021),
    []; Caitlin Bronson, In Wake of Oregon Shooting, Is it Time to Reconsider Gun Liability Insurance?, Ins. Bus. Mag. (Oct. 5, 2015), []; Michael Greenman, Why Not Treat Guns Like Cars?, Columbus Dispatch (Mar. 1, 2013, 9:21 AM), [].
  56. . Michael Hiltzik, Can Gun Insurance Mandates Stem America’s Torrent of Firearm Violence?, L.A. Times (July 7, 2022, 6:00 AM), [
  57. . Id.
  58. . 554 U.S. 570 (2008).
  59. . United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) (challenging constitutionality of 18 U.S.C. 922(k), which prohibits possession of a firearm with an obliterated serial number); United States v. Ross, 323 F. App’x 117, 120 (3d Cir. 2009) (“Nothing in Heller supports Ross’s challenge to the constitutionality of a statute criminalizing the possession of a machine gun.”); Hamblen v. United States, 591 F.3d 471, 474 (6th Cir. 2009) (“[W]hatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use.”); United States v. McCartney, 357 F. App’x 73 (9th Cir. 2009).
  60. . See Jackson v. City of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014); see also Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010).
  61. . Greeno, 679 F.3d at 518.
  62. . N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2126 (2022) (internal quotation marks omitted). 
  63. . Id.; See United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n.34 (11th Cir. 2012). Heller left little doubt that self-defense inside the home was within that core right. Several circuits have limited the core to just that area. See Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 94–97 (2d Cir. 2012); Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013); Woolard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013). Others, however, determined that carrying a firearm for self-defense outside the home was also within the core. See, e.g., Wrenn v. District of Columbia, 864 F.3d 650, 659 (D.C. Cir. 2017).
  64. . Bruen, 142 S. Ct. at 2127.
  65. . Id.
  66. . See id.
  67. . Id.
  68. . See id. at 2131.
  69. . Id.
  70. . Id. at 2132.
  71. . Id.
  72. . Id.
  73. . After the Highland Park Attack: Protecting Our Communities from Mass Shootings: Hearing Before the S. Comm. on the Judiciary, 117th Cong. 7 (2022) (statement of Joseph R. Blocher, Professor, Duke University Law School).
  74. . Bruen, 142 S. Ct. at 2132 (internal citations omitted).
  75. . Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2328 (2016).
  76. . Id.
  77. . United States v. Jimenez-Shilon, 34 F.4th 1042, 1051–52 (11th Cir. 2022) (Newsom, J., concurring).
  78. . See Bruen, 142 S. Ct. at 2126.
  79. . Id. at 2130.
  80. . See, e.g., Hellerstedt, 136 S. Ct. at 2326–27.
  81. . Joel Alicea & John D. Ohlendorf, Against the Tiers of Constitutional Scrutiny, Nat’l Affs., Fall 2019, at 73.
  82. . United States v. Virginia, 518 U.S. 515, 570 (1996) (Scalia, J., dissenting).
  83. . Riley v. California, 573 U.S. 373, 401 (2014).
  84. . See Sykes v. United States, 564 U.S. 1, 34 (2011) (Scalia, J., dissenting). It seems the Chief and Justice Scalia were correct in the Second Amendment context. In January 2023, the Third Circuit voted to rehear Range v. Garland, 53 F.4th 262 (3d Cir. 2022), vacated, 2023 WL 118469 (3d Cir. Jan. 6, 2023). See Range v. Att’y Gen. U.S., 69 F.4th 96, 100 (2023). Challenges to 18 U.S.C. §922(g) are cropping up across the country. Range challenged §922(g)(1), which bars felons from possessing firearms. The panel concluded that nothing in Bruen cast doubt on the statute. And “Justice Scalia’s majority opinion in Heller twice described ‘prohibitions on the possession of firearms by felons’ as both ‘longstanding’ and ‘presumptively lawful[.]’” Id. at 272. Further, Justice Alito “repeat[ed] those assurances.” But the third circuit has voted to hear the case en banc. It could simply affirm, but the vote suggests a majority of active judges on that court are not certain that the law is constitutional, at least as applied to Range.
  85. . N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022). 
  86. . Young v. Hawaii, 992 F.3d 765, 785 (9th Cir. 2021) (en banc).
  87. . Hon. Andrew S. Oldham, On Inkblots and Truffles, 135 Harv. L. Rev. F. 154, 158 (2022).
  88. . Will Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 818 (2019).
  89. . Elias Neibart, Originalism as Intellectual History, 28 Harv. J.L. & Pub. Pol’y Per Curiam 1, 2 (2022).
  90. . Oldham, supra note 86, at 158.
  91. . Young, 992 F.3d at 785.
  92. . Daniel L. Dreisbach, Thomas Jefferson and Bills Number 8286 of the Revision of the Laws of Virginia, 17761786: New Light on the Jeffersonian Model of Church-State Relations, 69 N.C. L. Rev. 159, 210 n.293 (1990).
  93. . John Phillip Reid, Law and History, 27 Loy. L.A. L. Rev. 193, 197 (1993).
  94. . Peter Novick, That Noble Dream: The ‘Objectivity Question’ and the American Historical Profession 2 (1988). Historiography, particularly briefs prepared for litigation, is influenced by the biases and point of view of the author. Even professional historians are not objective observers or recorders. Peter Novick notes that historical objectivity is “at best . . . ‘[A]n essentially contested concept . . . . There is nowadays, among even the firmest supporters of the idea of [historical] objectivity, a bit less confidence in the capacity of historians, no matter how rigorously trained, to completely purge themselves of all values; a resulting tendency to ground objectivity . . . .” Id. at 1–2. Novick contends that “[a]s a practical matter, [the idea of historical objectivity] promotes an unreal and misleading invidious distinction between, on the one hand, historical accounts ‘distorted by ideological assumptions and purposes; on the other, history free of taints.’” Id. at 6. 
  95. . N.Y. State Rifle & Pistol Ass’n Inc., v. Bruen, 142 S. Ct. 2111, 2130 n.6 (2022).
  96. . Id.
  97. . Young v. Hawaii, 992 F.3d 765, 785 (9th Cir. 2021) (en banc).
  98. . Id.
  99. . Oldham, supra note 86, at 171–72.
  100. . Id. at 171.
  101. . See Baude & Sachs, supra note 87, at 815. At least one federal judge is less sanguine about the task than Baude and Sachs. In United States v. Bullock, Judge Reeves was critical of the Court’s approach to history and the demands Bruen makes of district judges. See also United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2022 WL 16649175, at *1–3 (S.D. Miss. Oct. 27, 2022). He wrote that:

    [t]his Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians per form.

    Id. at 2. And the voluminous historical record provided in Supreme Court cases is rare. In mine-run criminal prosecutions that implicate the Second Amendment, district judges are left “deciding serious criminal cases—involving pressing questions of individual liberty and public safety—based on the arguments of non-historian lawyers, citing cases by non-historian judges, who relied on arguments by other non-historian lawyers, and so on in a sort of spiral of ‘law office history.’” United States v. Kelly, No. 3:22-cr-00037, 2022 WL 17336578, *1, *9–10, (M.D. Tenn. Nov. 16, 2022). He was inventive in his response. Judge Reeves called for the parties’ views on appointing an independent expert under Rule 706. See id. at *9, n.5.

  102. . Baude & Sachs, supra note 87, at 816.
  103. . Oldham, supra note 86, at 156.
  104. . See Firearm Risk Protection Act of 2013, H.R. 1369, 113th Cong. § 2(a) (2013); see also B. 20-0170, 2013 Council, Reg. Sess. (D.C. 2013); see also S.B. 758, 77th Leg. Assemb., Reg. Sess. (Or. 2013); see also H.B. 0687, 96th Gen. Assembly (Ill. 2010). New Jersey’s recently enacted law is ambiguous. But it can reasonably be read to require owners purchase liability insurance that covers intentional acts. 
  105. . See infra notes 117–137 and accompanying text.
  106. . See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2150 (2022) (holding that a regulation on public carry “tantamount to a ban” was unconstitutional); see also District of Columbia v. Heller, 554 U.S. at 628–36.
  107. . Indemnity can be divided into two types of coverage—first-party and third-party coverage. See Tom Baker & Kyle Logue, Insurance Law and Policy: Cases and Materials 315 (4th ed. 2017). First-party coverage pays for an insured’s own losses. For example, if a pipe bursts in your home, homeowner’s insurance may pay for the cost of repairing the structure and replacing damaged personal property. Perhaps a less familiar part of first-party coverage, insurance also may pay for the cost of a lawyer if an insured is sued. If someone is injured on your property, many homeowner’s insurance policies will select and pay for a lawyer to defend against the tort lawsuit. Third-party coverage pays any covered losses to an injured party. If you cause an accident, third-party coverage will pay for the damage to the other person’s vehicle, any medical bills they incur, and other costs related to the accident. 
  108. . See Kyle D. Logue & Adam B. Shniderman, The Case for Banning (and Mandating) Ransomware Insurance, 28 Conn. Ins. L.J. 247, 272 (2021); Baker & Logue, supra note 106, at 7–9. Encouraging risk mitigation is, perhaps, a polite way of describing the economic coercion, in the form of risk-adjusted premiums, intended to discourage behavior deemed too economically risky for the insurer or socially undesirable.
  109. . Baker & Logue, supra note 106 at 9.
  110. . See Erik Knutsen, Fortuity Victims and the Compensation Gap: Re-Envisioning Liability Insurance Coverage for Intentional and Criminal Conduct, 21 Conn. Ins. L.J. 209, 215 (2014). 
  111. . Jennifer Wriggins, Interspousal Tort Immunity and Insurance “Family Member Exclusions”: Shared Assumptions, Relational and Liberal Feminist Challenges, 17 Wis. Women’s L.J. 251, 252 (2002). 
  112. . Id.
  113. . See Erik S. Knutsen, Fortuity Clauses in Liability Insurance: Solving Dilemmas for Intentional and Criminal Conduct, 37 Queens L.J. 73, 77 (2011). 
  114. . Id.
  115. . Baker & Logue, supra note 106, at 7.
  116. . Deborah A. Stone, Beyond Moral Hazard: Insurance as Moral Opportunity 1, 52 (1999).
  117. . Peter Kochenburger, The Quiet Expansion of Intentional Act Provisions, Ins. Bus. Am. (Jun. 11, 2019), [].
  118. . Knutsen, supra note 112 at 76–77.
  119. . Iso, Homeowners 3-Special Form (HO 00 03 05 11) at 19 (2011).
  120. . Kochenburger, supra note 116; see Farmers & Mechanics Mut. Ins. Co. of W. Va. v. Cook, 557 S.E.2d 801, 807 (W.Va. 2001) (citing State ex rel. Davidson v. Hoke, 207 W.Va. 332, 339, 532 S.E.2d 50, 57 (2000) (Starcher, J., concurring)) (“[U]nder an intentional acts exclusion, ‘a policyholder may be denied coverage under the policy only if the policyholder (1) committed an intentional act and (2) expected or intended the specific resulting injury or damage” (emphasis added)); see also State Farm Mut. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968) (holding the intentional act exclusion did not exclude coverage where the insured fired a gun to frighten the victim but did not intend to shoot them).
  121. . See Cook, 557 S.E.2d at 804, 807.
  122. . Id. at 807.
  123. . See e.g., N.C. Farm Bureau Mut. Ins. Co. v. Mizell, 530 S.E.2d 93, 93–94 (N.C. Ct. App. 2000) (affirming district court’s judgment that the insurer had “no responsibility for coverage and has no duty to defend in any tort case involving the defendants” where the insured fired several warning shots at the ground and injured an individual).
  124. . Excluding intentional harms and criminal acts eliminates coverage for the vast majority of gun-related injuries. Less than 20% of gun injuries stemmed from unintentional conduct. Fast Facts: Firearms Violence and Prevention, Ctr. for Disease Control (May 4, 2022), [
    V7LQ-QLFH]. And less than 1% of firearms-related deaths were caused by preventable/accidental causes. Guns, Nat’l Safety Council (2021), https://injuryfacts. [].
  125. . See, e.g., Easley v. Am. Fam. Mut. Ins. Co., 847 S.W.2d 811, 812 (Mo. Ct. App. 1992) (“Missouri courts have consistently held that an insured’s intentional infliction of damage cannot be deemed an accident and cannot be covered by liability insurance.”); Robert E. Keeton, Basic Text on Insurance Law, 286–87 (1971).
  126. . See Kochenburger, supra note 116.
  127. . Cynthia A. Muse, Homeowners Insurance: A Way to Pay for Children’s Intentional and Often Violent Acts, 33 Ind. L. Rev. 665, 668 (2000).
  128. . See R.J. Lehmann, Nation’s First Gun-Insurance Mandates Take Effect. Will They Hold up in Court?, Ins. J. (Jan. 3, 2023), [].
  129. . Id.
  130. . Nat’l Rifle Ass’n., No. 2020-0003-C, N.Y. Dep’t. Fin. Servs. ¶ 17 (Nov. 13, 2020).
  131. . Id. at ¶ 20.
  132. . Lehmann, supra note 127.
  133. . Brian Nearing, State Shuts Down NRA Gun Owners Insurance Program, Times Union (May 2, 2018), [].
  134. . Christine Clarridge, Concealed-Carry Group Fined for Illegally Promising Insurance Coverage for Shootings in Washington State, Seattle Times (Oct. 21, 2019),
  135. . Id.
  136. . See Oregon Insurance Regulator Mandates Narrow Intentional Acts Exclusion in Property and Casualty Policies, Crowell (May 4, 2022), [].
  137. . Or. Dep’t. Consumer and Bus. Servs. Div. Fin. Reg., Bull. No. DFR 2022-2, Guidance On Policy Language Used In Intentional Acts Exclusions (2022).
  138. . Oregon Insurance Regulator Mandates Narrow Intentional Acts Exclusion in Property and Casualty Policies, supra note 135.
  139. . N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2133 (2022).
  140. . See id.
  141. . Benjamin Franklin created the Philadelphia Contributionship, the first property insurance company in the United States. See Our History, Phila. Contributorship, []; Swiss Re, A History of UK Insurance 1, 2 (2017).
  142. . In supplemental briefing, following Bruen, the National Association for Gun Rights and the city point to the surety bond as the appropriate analogue. See Plaintiffs’ Supplemental Brief at 4, Nat’l Ass’n. for Gun Rights v. City of San Jose, No. 22-CV-00501 (“The Supreme Court’s analysis of surety laws highlights the constitutionally meaningful distinction between them and the City’s Ordinance.” Defendant’s Supplemental Briefing at 6, Nat’l Ass’n. for Gun Rights v. City of San Jose, No. 22-CV-00501 (“While Bruen ultimately found [surety] laws did not save the specific New York law at issue, Bruen’s reasoning is directly applicable here: because such laws are ‘intended merely for prevention’ and ‘not meant as any degree of punishment,’ any burden associated with these surety laws was ‘too insignificant’ to bear on the constitutionality analysis.”).
  143. . Order Denying Motion for Preliminary Injunction at 17, Nat’l Ass’n for Gun Rights v. City of San Jose, No 22-CV-00501.
  144. . Bruen, 142 S. Ct. at 2118.
  145. . Justices of the Peace Act, 1361, 34 Edw. 3, c. 1 (Eng.).
  146. . Id.
  147. . Brief of Amici Curiae The Liberal Gun Club and Commonwealth Second Amendment in Support of Petitioners at 7, N.Y. Pistol & Rifle Assn., Inc. v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843) (quoting R. v. Sandbach ex parte Williams, [1935] 2 K.B. 192, 196) (emphasis added).
  148. . Act of 1795, ch. 2, Mass. Laws 436 (providing for the punishing of criminal offenders). 
  149. . 1 Smith’s Laws 5 (Pa. 1700).
  150. . See Pa. Stat. Ann. tit. 19, § 23 (1964).
  151. . See 1 Smith’s Laws 5 (Pa. 1700).
  152. . See id.
  153. . See id.
  154. . See id.
  155. . See id.
  156. . See Act to Prevent the Commission of Crimes, § 16, reprinted in Statutes of The Territory of Wisconsin 379, 381 (1839); Me. Rev. Stat. ch. 169, § 16 (1840), reprinted in The Revised Statutes of The State of Maine 707, 709 (1841); Mich. Rev. Stat. ch. 162, § 16, reprinted in The Revised Statutes of The State of Michigan 690, 692 (1846); Proceedings to Prevent the Commission of Crimes, ch. 14, § 16, 1847 Va. Acts 127, 129; Proceedings to Prevent the Commission of Crimes, ch. 112, § 18, reprinted in The Revised States of The Territory of Minnesota 526, 528 (1851); Proceedings to Prevent Commission of Crimes, ch. 16, § 17 (1853), reprinted in The Statutes of Oregon 218, 220 (1854); Proceedings to Detect the Commission of Crimes, § 6 (1861), reprinted in A Digest of The Laws of Pennsylvania 248 , 250 (John Purdon comp., 1862). 
  157. . See Mass. Rev. Stat., ch. 134, § 16 (1836).
  158. . Id. (emphasis added).
  159. . Young v. Hawaii, 992 F.3d 765, 820 (9th Cir. 2021) (en banc).
  160. . Id.
  161. . Id. at 819–20.
  162. . Id.
  163. . Id. at 820 (quoting Mass. Rev. Stat., ch. 134, § 4).
  164. . Revised Statutes of The Commonwealth of Massachusetts, ch. 134, § 4.
  165. . Id. § 17.
  166. . Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017).
  167. . Id. at 661 (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 633–34 (2008)).
  168. . See Leider, infra note 175, at 14.
  169. . Wrenn, 864 F.3d at 661.
  170. . Robert Leider, et al. as Amici Curiae Supporting Petitioners at 8, N.Y. State Pistol & Rifle Assn., Inc. v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843).
  171. . Wrenn, 864 F.3d at 661.
  172. . Id.
  173. . See Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc).
  174. . Id. at 820 (cleaned up).
  175. . Id.
  176. . Robert Leider, Constitutional Liquidation, Surety Laws, and the Right to Bear Arms, in New Histories Of Gun Rights And Regulation: Essays On The Place Of Guns In American Law And Society (Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller ed., (forthcoming) (manuscript at 3),
  177. . Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L.J. F. 121, 133 (2015).
  178. . See Leider, supra note 175, at 3.
  179. . Id. at 14.
  180. . See generally Oldham, supra note 86 and accompanying text.
  181. . N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2120 (2022).
  182. . See Mass. Rev. Stat., ch. 134, § 16 (1836).
  183. . Bruen, 142 S. Ct. at 2120.
  184. . See San Jose, CAL., Code of Ordinances, § 10.32.210 (2022);

    A person who resides in the City and owns or possesses a Firearm in the City shall obtain and continuously maintain in full force and effect 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.

    H.B. 0687, 96th Gen. Assemb. (Ill. 2009). (“Any person who owns a firearm in this State shall maintain a policy of liability insurance . . . .”) S.B. S4946, 2021–22 Leg., Reg. Sess. (N.Y. 2021). “Any person who owns a firearm on the effective date of this section shall obtain the insurance required by this section within thirty days of such effective date.”

  185. . See Nat’l Ass’n for Gun Rts., Inc. v. City of San Jose, 618 F. Supp. 3d 901, 917 (N.D. Cal. 2022).
  186. . Id.
  187. . See Insurance Companies Don’t Ask About Gun Ownership, U-M Researcher Asks Why, Mich. news (July 2, 2018), [].
  188. . Id.
  189. . Fla. Stat. § 626.9541(g)(4) (2018).
  190. . See Stephen G. Gilles & Nelson Lund, Mandatory Liability Insurance for Firearm Owners: Design Choices and Second Amendment Limits, 14 Engage 18, 18 (2013) (“Competitive pressures would lead insurance carriers to keep the premiums for low-risk gun owners low, while charging higher premiums to those who are more likely to cause injuries to other people.”).
  191. . See Jason Hanna, The Nation’s First Law Requiring Gun Owners to Have Liability Insurance May Affect Less Than You Think, CBS 58 (Mar. 6, 2022, 12:34 PM), [].
  192. . Tom Baker & Thomas O. Farrish, Liability Insurance & the Regulation of Firearms, in Suing The Gun Industry 292, 299 (Timothy Lytton ed., 2005).
  193. . Id. at 300.
  194. . See generally id. at 300.
  195. . See Leslie Kasperowicz & John McCormick, The 5 Main Homeowners Insurance Cost Factors, (June 29, 2023), [].
  196. . Steve Hallo, Low-Income Homeowners Pay More for Insurance in Most States, PropertyCasualty360 (May 6, 2021, 12:00 AM),
    16041739 [].
  197. . Id.
  198. . N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2149 (2022) (quoting Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017)).
  199. . H.B. 0687, 96th Gen. Assemb. (Ill. 2009).
  200. . 430 Ill. Comp. Stat. 65/14(c)(1) (2012).
  201. . See id. at 65/8.4 (2022).
  202. . See Bruen, 142 S. Ct. at 2148 (“In short, the Commonwealth required any person who was reasonably likely to ‘breach the peace,’ and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm.”).
  203. . San Jose, CAL., Code of Ordinances, § 10.32.225 (2022). Several proposed insurance mandates included all gun owners, regardless of whether they intended to carry their gun outside the home. See H.B. 0687, 96th Gen. Assemb. (Ill. 2009) (“Any person who owns a firearm in this State shall maintain a policy of liability insurance . . . .”); see S.B. S4946, 2021–22 Leg., Reg. Sess. (N.Y. 2021) (“Any person who owns a firearm on the effective date of this section shall obtain the insurance required by this section within thirty days of such effective date.”).
  204. . Joseph Blocher et al., The Geography of a Constitutional Right: Gun Rights Outside the Home, 83 Law & Contemp. Probs., no. 3, 2020, at i, iii (citing Dist. of Columbia v. Heller, 554 U.S. 570, 580 (2008)).
  205. . Bruen, 142 S. Ct. at 2134.
  206. . Bruen notes that modern analogues need not be “twins.” See id. at 2133. One way to determine what features are relevant suggests that the Court must pick a single historical analogue. While the surety laws are the most similar, the Court might look to other historical regulations to determine whether differences are constitutionally significant. To determine whether a greater burden may be imposed on the carrying of arms than the keeping of arms inside the home, the Court may take a case involving permit-to-purchase laws. Fourteen states currently have permit-to-purchase laws that burden the right to purchase at least some firearms. See Jennifer Mensch, The Supreme Court’s Gun Decision Could Open This Policy up to Court Challenges, The Trace (Aug. 2, 2022),
    []. Like insurance mandates, permit-to-purchase laws are a burden on keeping arms. These laws, much like the shall-issue carry permits discussed in Bruen, include a variety of requirements to obtain a license to purchase a gun. Maryland’s law requires (1) proof of completion of a qualifying firearms safety course with a live-fire requirement; (2) a complete set of fingerprints; and (3) a statement made by the applicant under the penalty of perjury that the applicant is not prohibited under federal or State law from possessing a handgun. See Md. Code Ann., Pub. Safety, §§ 5-117.1(d)(3), (f), (g)(3), (g)(5) (West 2013). A challenge to Maryland’s handgun qualification license is now before the Fourth Circuit. Md. Shall Issue, Inc. v. Hogan, No. ELH-16-3311, 2021 WL 3172273 (D. Md. July 27, 2021), appeal docketed, Md. Shall Issue, Inc. v. Woodrow Jones III, No. 21-2053 (4th Cir. argued March 10, 2023). Proponents have been unable to offer a compelling historical analogue.
  207. . Nat’l Ass’n for Gun Rights v. City of San Jose, 618 F.Supp.3d 901, 917 (N.D. Cal. Aug. 3, 2022). 
  208. . Stone, supra note 115, at 52.
  209. . Id.
  210. . Id.
  211. . Omri Ben-Shahar & Kyle Logue, Outsourcing Regulation: How Insurance Reduces Moral Hazard, 11 Mich. L. Rev. 197, 199 (2012). 
  212. . Id. at 200.
  213. . Id.
  214. . Id.
  215. . Id.
  216. . Id. at 199.
  217. . Id. at 203.
  218. . Id.
  219. . Id. at 205.
  220. . Id. at 205–11.
  221. . Id. at 213–216.
  222. . See supra note 186 and accompanying text.
  223. . Ben-Shahar & Logue, supra note 210, at 213–216; see also supra note 186 and accompanying text.
  224. . See supra notes 109–137 and accompanying text. Courts have been inventive in determining whether an act was “intentional.” For example, in Farmers & Mechanics Mutual Insurance Co. of West Virginia v. Cook, the West Virginia Supreme Court addressed whether a wrongful death claim was excluded when the insured shot the deceased in self-defense. 557 S.E.2d 801 (W. Va. 2001). The policy excluded coverage for bodily injury that is expected or intended. Id. at 805. The court posed the following question: “does a person who acts in self-defense or in defense of another really act intentionally, and with an intention to cause bodily injury?” Id. at 807. Ultimately, the court concluded that they do not. Considering the underlying tort principles, the court noted that, “in order to trigger an intentional acts exclusion, the policyholder must intend to bring about a ‘result which will invade the interest of another in a way that the law forbids.’” Id. at 809 (quoting Prosser and Keeton on Torts, § 8, at 36 (W. Page Keeton et al. eds., 5th ed., 1984)). An individual acting in self-defense “acts primarily to prevent harm—any harm caused to the attacker is incidental.” Id. The court, therefore, held that there was a triable issue of fact—the jury must determine whether the insured acted with wrongful intent. Id. at 811. 
  225. . See supra notes 2–3 and accompanying text.
  226. . See supra note 8 and accompanying text.
  227. . N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2133 (2022).
  228. . See United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2022 WL 16649175, at *1 (S.D. Miss. Oct. 27, 2022).