Hastings Constitutional Law Quarterly


Chris Molina


Over two centuries after the Bill of Rights was enacted, the Supreme Court finally resolved the controversy surrounding the meaning of the Second Amendment in the landmark case, District of Columbia v. Heller. Specifically, the Court held that the Second Amendment protected an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. In reaching this decision, the Court determined that the Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State," did not limit the scope of the right to bear arms for militia purposes. Although the Court expressly rejected the argument that the Amendment's prefatory clause controlled the scope of the Amendment's protections, it failed to clearly articulate how courts might apply this interpretation to other types of gun laws. As a result, lower courts have struggled to devise an analytical framework for deciding cases that involve Second Amendment challenges.

Amidst this legal controversy, gun violence continues to be a significant issue in the United States. Each year, guns are involved in tens of thousands of deaths and the costs to society, in terms of lost wages and medical treatment, are staggering. Yet the political will to enact new gun laws is often lacking. Recently, however, some states have considered a new kind of solution to gun violence: mandatory liability insurance for gun owners. Proponents of an insurance mandate argue that requiring gun owners to purchase liability insurance will give them a financial incentive to become safer owners, implying that the cost of such insurance would be tied to the level of risk a given individual poses, much like rates for car insurance. Although a handful of states are currently considering the issue, several questions loom with regard to the specific policy implications, the design, and the constitutionality of such a law. This Note provides an analysis in each of these three areas and seeks to explore more fully the questions that policymakers who support such laws will inevitably need to address.