On September 16, 2026, the Department of Justice sued the City of San Jose, California, over the highest concealed-carry application fee in the country. The complaint, United States v. City of San Jose, California, et al., No. 5:26-cv-10508 (N.D. Cal.), targets a $1,591 fee the San Jose City Council set this past June, and it asks a federal court to declare that fee an unconstitutional burden on a fundamental right.
Bruen’s Warning About Exorbitant Fees
The Second Amendment law here is not new; it is New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), applied to its logical conclusion. Bruen held that “shall-issue” carry licensing can survive the Second Amendment, but it did not give jurisdictions a blank check. The Court warned in a footnote that a shall-issue regime could still be unconstitutional if “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” Bruen, 597 U.S. at 38 n.9. That is precisely the theory the government now presses against San Jose. As the Justice Department’s press release put it: “The Supreme Court has held that ‘exorbitant fees’ such as San Jose’s violate the Second Amendment because they deny ordinary citizens their right to carry firearms for self-defense.” Assistant Attorney General Harmeet K. Dhillon, who leads the Civil Rights Division, framed the stakes plainly: “You don’t need a law degree to recognize that charging a fee several times higher than the cost of the firearm itself is illogical, and an unconstitutional attempt to impede Americans’ Second Amendment rights.”
An Outlier by the Government’s Own Numbers
What makes this complaint effective is not rhetoric; it is arithmetic. The complaint itself states the point I have made for years about how the Supreme Court treats disfavored jurisdictions: “San Jose is a national outlier when it comes to burdening the exercise of fundamental rights. Its fees are abusive and violate the Second Amendment.” The comparison chart in the filing does the rest of the work. Washington, D.C. charges $75. Philadelphia charges $20. Boston charges $100. Chicago charges $150. New York City charges $340 for a three-year license. Even San Jose’s own Bay Area neighbors fall far short: San Francisco charges $144; Berkeley charges $255 up front plus $325 on approval; Santa Clara charges $488 up front plus $488 at issuance; Alameda County charges $347 and $346 for the same outcome. Against that backdrop, San Jose’s $1,591 fee is not an outlier by a matter of degree. It is an outlier by a matter of magnitude, and outlier laws are exactly what this Supreme Court has shown little patience for.
My Own Diagnosis: Administrative Nullification
I have written about exactly this pattern before. In my article for the Harvard Journal of Law & Public Policy, Licenses Delayed, Rights Denied, I explained what jurisdictions hostile to Bruen have been doing since 2022. I wrote:
“The Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen was meant to vindicate the Second Amendment’s text and historical traditions against discretionary state licensing schemes that denied ordinary citizens their constitutional right to bear arms in public. Yet three years after Bruen, a predictable pattern has emerged: jurisdictions hostile to gun rights have responded not with compliance, but with sophisticated resistance. … These states have transformed federalism’s promise of experimentation into what can only be described as laboratories in denying constitutional rights. The tools are facially neutral — processing times, training requirements, documentation standards — but their cumulative effect is anything but. … [T]hese measures reveal a deliberate strategy of administrative nullification that courts have been slow to recognize and even slower to remedy.”
San Jose’s fee is one tool in that strategy. Its mandatory psychological evaluation, with no disclosed cost cap, is another, because it hands an unaccountable third party the discretion to price an applicant out of a constitutional right — the exact discretion Bruen forbade licensing officials from exercising directly.
Binary Eligibility, Not Bureaucratic Judgment
My own view, which goes further than this particular lawsuit, is that a licensing process should never ask anyone to sit in judgment of an applicant’s character. It should ask binary eligibility questions and nothing more: Is the applicant a convicted felon? Is the applicant a citizen or lawful resident? Every question should reduce to yes or no. The moment a process asks a psychologist or a licensing clerk to render an opinion about whether someone is worthy to carry, that process has reintroduced the discretionary machinery Bruen dismantled. This particular complaint does not reach that argument; it is built narrowly on cost. But the two problems come from the same source, and both should fall together over time.
One Case at a Time
The Department of Justice is building this record deliberately, one jurisdiction at a time, and that pattern matters beyond San Jose. The Supreme Court has already set oral argument for December 2, 2026, in the consolidated AR-15 cases, Viramontes v. Cook County and Grant v. Higgins — that date is fixed. When the Court might rule is not; my own expectation, and it is only a forecast, is sometime around June 2027. Cases like this one are laying the groundwork for what follows that decision: a systematic dismantling of the licensing schemes designed to make Bruen’s promise real only on paper.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.