Persons wanting a level of responsibility for public carrying of firearms should take the proposed federal Concealed Carry Reciprocity Act (S-446) seriously. It is the NRA’s biggest want out of this Congress, was introduced by John Cornyn–a very powerful Senator and has support by at least 37 Senate co-sponsors. There is similar support in the House. It could become law very quickly. Its provisions would have the practical effect of making uncontrolled carry of weapons nationwide policy. They would also be an impediment to stopping illegal street sales and possession by prohibited persons. Adoption of an insurance requirement to protect victims is one of the most effective way to reduce the dangers that this would bring.
Mandatory gun insurance to gain adoption and to withstand the inevitable court challenges should be designed to provide real protection for victims and promote safe practices. It should be structured differently than either insurance as a backdoor gun prohibition or “shooter protection insurance” as currently sold by the NRA and others. The overall purpose of this blog is to examine how this is best done.
The sections below show the terms that should be included in an effective insurance mandate for this purpose. They can serve as an outline in drafting legislation when applied in light of other firearms laws in the relevant state.
This post is a good place to start if you’re new to this blog. Scan the questions and follow the ‘Related:’ link(s) if you have an interest in a particular area. You may also want to check the category’s listed in the right hand column.
Q: What is the purpose of mandating gun insurance?
Required insurance for guns or gun owners should be designed to provide benefits for victims of gun accidents or violence. Insurers will automatically take appropriate steps to encourage gun safety as part of their loss control and underwriting activities.
Q: What specifically would be the best insurance system for guns?
Each state should adopt a system of no-fault insurance with a system of delivering medical and cash benefits directly to victims. This insurance should be required to be in place for any firearm brought into or kept in the state in order for that firearm to be legal. It should provide all of the benefits available to victims of motor vehicle or workplace injuries.
We have responsible ways to handle things which are dangerous but which are not made illegal because of their actual or assumed benefits to society. We look carefully at ways to contain the dangers and enjoy the benefits in almost every case. The exception is firearms, but we are just beginning to pull our heads out of the sand and examine this important subject.
First Principle — Mandatory No-Fault Insurance to Cover All Victims
One of the most powerful tools to facilitate a dangerous activity is insurance. Unfortunately, requiring insurance to cover gun violence has been looked at only as a way to penalize gun ownership or at least to transfer costs to gun owners. The result is calls for high limit liability insurance, usually with terms that make actual implementation unlikely. This blog argues that the tort/liability model is one of the least effective ways to increase safety and provide for victims. A No-Fault system similar to worker’s compensation or some motor vehicle insurance is much better. It needs to follow a gun that changes hands in a way to insure that all guns are covered.
Second Principle — Top Down Insurance Does Not Require Gun Registration or Owner Tracking
This blog also is advocating that insurance be required of gun manufacturers or anyone bringing a gun into the system in such a way that the insurer only relinquishes responsibility when another insurer (contracted by a new owner) takes it up. Insurance should remain in effect through any transfer legal or not. This would allow confidence that insurance was always in effect without tracking the gun owners. With a proper No-Fault system the victim would not have to even be told the name of the owner to collect compensation. All transactions by claimants or the government would be with the insurance companies.
Proposed bills have been introduced in the House (HR-38) and the Senate (S-446) which would allow holders of permits to carry firearms in all states. They have gathered a substantial number of sponsors. The current language of the bills is very broad and would not only prevent state restrictions on out of state permit holders but allow residents of states without a permit requirement to carry firearms nationwide. There are provisions to allow persons arrested under state laws to recover damages and legal expenses.
If this law passes states will have great difficulty enforcing any restrictions on gun carrying because of the difficulty in establishing that a person is not a resident of another state and because of the difficulty of checking the validity of out-of-state permits. There will be great pressure on states to relax requirements for their own citizens to match those of other states with no restrictions.
In this situation, an insurance mandate could be very important in providing at least some responsibility requirement.
A 2002 buyback program in Australia is widely acknowledged to have removed most of the semi-automatic guns from private stocks, officially counting 659,940 newly prohibited weapons. The Times article recognizes this program, pointing out that “the current rate of homicides involving guns in the United States is 23 times higher than it is in Australia” and that “Australia has not had a mass shooting since Port Arthur.” Port Arthur was a very serious mass shooting that initiated the movement to adopt Australia prohibitions and the buyback program. The buyback was a large program for a country of Australia’s size; and this amnesty will, no doubt, yield a much smaller reduction in the stock of illegal firearms. But amnesty and other uncompensated programs are inexpensive and can be repeated over time. The article linked above counts 219,721 additional firearms in uncompensated programs since the buyback. This is a substantial reduction.
If gun owners are mandated to have insurance, new guns can be monitored. But what about the 300,000,000 guns currently held by individuals, including illegal guns? Clearly, no system of insurance, gun regulation, or police activity can deal completely with problems arising from such massive numbers. The system of chaining insurance responsibility “Top Down” works to retain guns in the system one there, and stolen or otherwise illegally acquired guns will retain the insurer of the last legal owner. But the outstanding guns in the hands of criminals and a good proportion of those owned by otherwise law abiding owners will not be enrolled in insurance without good reason.
Although it might be assumed that political considerations will mean guns currently owned will be grandfathered in, that does not have to be the case. Legislators could establish a policy whereby all guns must be insured. When state or national laws are adopted to require insurance for guns sold by manufacturers or passing through the hands of legal gun dealers, the laws can require that persons owning guns acquire insurance.
In spite of declarations in the media from some gun proponents that they will not comply with various proposed measures regulating firearms, most gun owners are legal and responsible citizens and will comply with a requirement after a reasonable period of time. They will be able to purchase insurance and have their gun’s serial number added to the database without revealing their names to anyone other than their insurer. Much of the insurance now sold to gun owners is now provided to them in association with the NRA, and there is no reason that this cannot continue for those who have concerns about insurers protecting their privacy. Of course, any insurer, even the NRA, would have to comply with financial regulation as an insurer and provide the mandated insurance compensations for victims.
The database suggested as a part of the “Top Down” system would provide a quick way for a law enforcement officer to check if a particular gun is insured. The database is designed to provide a quick way to find the insurer responsible for a particular gun, but contains no information about the gun’s location or owner. An officer finding the gun as part of an action for some investigation or arrest can check if the gun is properly covered. Guns are routinely and legally declared when they are shipped in luggage on airlines and may have to be declared when brought into controlled places depending on local laws. Insurance can be checked in these situations as well.
Representative Carolyn Maloney (D-NY-12) has introduced a bill, HR-2546, to require insurance for firearm transfers again in the congress. The bill has been co-sponsored by representatives: Blumenauer (OR-3), Clark (MA-5), Grijalva (AZ-3), Lynch (MA-8), McGovern (MA-2), Rangel (NY-13), and Tsongas (MA-3). It is a requirement for liability insurance for sales of firearms. As introduced it does not specify the amount of insurance required or the parties to be protected by the insurance.
This blog has pointed out many times the limitations of the liability insurance model for protecting victims of gun violence; but many people easily see the parallels between the car insurance requirement and the need for gun insurance. Liability insurance, as implemented in various states for the protection of people injured by cars, is often modified by the provisions of a mandate to be in a form which, while called liability insurance, is really based on some other insurance system. These systems are typically called no-fault insurance or personal injury protection as well as being nominally called liability insurance. They pay benefits directly to victims.
One of the good models for gun insurance is found in the requirement for a personal injury protection endorsement to car insurance in Rep. Maloney’s own state, New York. It is codified in New York Regulation 68. This provides for persons not covered by their own insurance (such as most pedestrians) a requirement for no-fault benefits which are paid directly to first parties (injured persons).
The Great Bargain of Workers’ Compensation is called that because employers gain immunity from lawsuits for negligence from their workers and the workers gain certainty that they will be compensated for work injuries by compulsory insurance purchased by the employers. As the first post in this series described; the system came out of an intense reform effort from many people determined to protect and benefit workers; but employers, especially the larger firms, also pressed hard for enactment of the system. The result was adoption of compulsory insurance in many states before 1920. Even in states where an employer could elect not to participate (still allowed in Texas) nearly all employers opted in to get protection from liability.
I have been advocating a mandate for gun insurance for two years now. In order for insurance to cover the majority of shootings, it must cover not only the original, proper or legal owner of a gun but anyone who might pick up the gun or steal it and later use it. This is the most controversial part of my recommendation, which is:
Insurance should be required of manufacturers and importers of firearms that would cover all persons injured with a firearm having at least the benefits for an injured worker of average wages under workers compensation in the state where the injury occurs. The insurance should remain in effect no matter how the gun is transferred to anyone else until it is replaced by similar insurance taken out by a new owner or the gun is certified destroyed.
This is the first of a series of posts which are designed to show that workers’ compensation systems, insurance and laws are an excellent–the best that we have–model for dealing with gun violence victim compensation and for reducing that victimization.
A little over one hundred years ago, our country faced a crisis that was quite similar to the gun violence problem that we now face. Industrial and work related accidents were completely out of hand, producing deaths and injuries that reached almost every family. Looking back on my own family history, a great uncle on my fathers side was killed and my mothers grandfather lost an arm–both in railroad accidents of that era. It’s mostly forgotten today but it was a great issue at the beginning of the twentieth century.