Mandatory Insurance for Armed Professions is Normal

We see armed people working around us on a daily basis.  Some of these private professionals are highly visible such as guards for banks and armored car services and some are less obvious to the eye such as private investigators or detectives.  In almost all states there are requirements for them to have licenses and in most states they must have insurance or bonds that function as insurance.  But there is tremendous variation in the requirements and in the definitions and terminology of the various roles.

There are states which require insurance if and only if the person involved is armed.  For example, in California both private guards and private investigators only are required to have insurance ($500,000 for each of bodily injury and property damage) if they carry firearms.  Or, in North Carolina, private guards and patrol personnel are required to carry insurance whether armed or not but private investigators or courier’s are only required to be insured if they carry firearms.  In New York State security people only need licenses and insurance if they do such tasks over 50% of the time if unarmed but any amount of time if armed.

This means that we already have mandatory gun insurance in some situations in this country, with none of the problems projected by those who think it is not possible.  It also shows that the need for insurance protection is closely associated with carrying weapons and is not just part of the role of guard or investigator.

Private guards and investigators are thoroughly screened perhaps more carefully than holders of non professional weapons permits.  The application for North Carolina requires a fingerprint card, directly submitted questionnaires from 3 character references, clearances from local police at previous addresses and an Equifax credit report among many other requirements. Similar requirements are made by most states.  A security professional can lose their license or job because of incidents of irresponsibility as well as for crimes and has a great incentive to handle firearms with due care.

The need for insurance to protect the public both by compensating those hurt and by encouraging safe practices is likely to be greater for persons carrying weapons for personal reasons than for professionals.  They come into a wider variety of situations and they are not working under supervision in defined roles as are the professional armed persons.  A business even without the backup of insurance is likely to be able to pay if they cause intentional or negligent harm, while many individuals lack sufficient personal resources to be financially responsible.

All of these factors show that legislators should adopt laws requiring weapon permit holders to have the same level of insurance that is required of the armed professions.

Should Gun Owner’s Insurance Pay Victims After Gun Theft?

The insurance model recommended by this blog is designed to have insurer retain responsibility for guns after they are stolen.  That means that if a responsible gun owner has a burglary and a gun is stolen and then after the gun changes hands, goes underground and turns up to injure someone in a distant location then the gun owner’s insurance will have to pay.  Gun defenders are quick to object and say that the burglar and the shooter are responsible and the gun owner shouldn’t be held to account for their acts.

In those cases the criminals are, of course,  responsible and if they can be caught and have resources they should be the first to pay to the injured party.  Unfortunately, they often aren’t caught and they don’t have resources and, if they go to prison for their crimes, are unlikely to earn enough in the future to redress the damage they have done.  So the question is should the legal gun owner or the gun owner’s insurance be held responsible in light of their role as enablers of this unfortunate situation.  My answer is that they should be.

Guns are unique among the common articles in our society because they are widely held in large numbers, intentionally designed and made to be effective in killing and injuring persons, and easily transferred into prohibited hands. At least 200,000 and probably twice that or more guns are stolen each year and, because they have serial numbers, do not return to legal hands. Illegal guns almost all start out as legally held ones; there are no significant reports of clandestine gun factories and smuggling across international borders goes from the US to other countries.

Common Law on the subject

There are two mechanisms of judge made law which seem to apply, but judges have not generally made a determination that they should be used for guns that are stolen.  The first is to take into account the fact that a gun is a particularly dangerous object and apply a rule of absolute liability for the harm done by this object as is often done for users of explosives and keepers of dangerous wild animals.  It’s probably not entirely coincidental that guns are powered by explosives and stolen guns injure people when they ‘get out’ into the public.  The second is to have a presumption of negligence under the doctrine of res ipsa loquitur (lit. the thing speaks for itself), the point here being that it’s fair to assume that allowing a gun to be stolen implies that there must have been some negligence.  Just because judges have not widely applied these doctrines on their own to guns does not mean that such a responsibility could not be legislated.

An example of legislation on a similar subject

An example of how this is done in other areas is provided by the dog bite laws in various states.  In California the statue says:

(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner s knowledge of such viciousness

I asked a famous dog bite lawyer in California if this would apply after the dog was stolen as was told that as far as he knew there had been no such cases in the courts. His website states that he has never seen the defense of non-ownership succeed.   In res ipsa cases theft is often taken as a sufficient intervening cause to break the chain of negligent responsibility, but that is not a universal rule.  Holding gun owners responsible after their gun gets out of their hands is a matter of policy.  This is a policy badly needed to protect the legions of victims of such guns which should be adopted by legislatures.  Insurance is the most logical mechanism to enforce this policy.

Questions and Answers on Mandating Gun Insurance.

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This post is a good place to start if you’re new to this blog.  Scan the questions and follow the <More> link if you have an interest in a particular area

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. <More>

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.

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CCW Permit + Stand Your Ground = Insurance Need

Many states have adopted stand your ground laws that protect shooters in public spaces that accidently(with or without negligence) either unintended bystanders or innocent persons who are wrongly believed to be a threat.  This is the most uncontroversial situation where insurance should be required.  These innocent people need to be protected and many of them are not insured themselves.

As this blog has argued people who have permits to carry weapons into streets and outside the home.  These people are more likely to confront real and perceived threats with an audience of bystanders.  They represent an additional risk over those who only have guns for protection in their homes.  These risks and the relative ease of insuring against it are described in another post “Enacting a Concealed Carry Insurance Mandate

For example the Florida Statute states:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;

And:

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. . . .

The courts have not yet ruled on whether this immunity is as absolute at it appears to be on it’s face.

The law does say that it have to be a reasonable belief, but one can have a reasonable belief for the few seconds it takes to shoot and still have a chance to avoid the killing if they took a few seconds to more deeply assess the situation.  The black object being drawn from a hip pocket may turn out to be a cell phone.  Retreat probably does include holding off till you’re sure of the situation.  And then there is the situation of missing and shooting a third party.  If immunizing a person against civil action has any real meaning, it that a person who is negligent in not retreating or holding off till the situation is more clear or the danger to bystanders is reduced is the person protected.  Regardless of whether one thinks that this law is good policy, protection of the innocent requires that insurance be available to protect those victims.  Not liability insurance; liability is removed by this law, but no-fault insurance for the benefit of the innocent victim.

Unfortunately, the political situation in exactly those states which pass this kind of law is one that would be most resistant to any requirement of gun owner or permit holder insurance; but we should press legislatures anyway.

Enacting a Concealed Carry Insurance Mandate

While it would be ideal to have a gun insurance adopted at a single time as one well designed national mandate, it’s likely that political reality will force it to come into being in stages.  The logical place to start is for the more amenable states to require insurance for holders of permits to carry firearms in public.  If this can be extended to general coverage of guns in some of these states, the stage is set for a federal mandate for top-down insurance which extends into any state requiring insurance.  This in turn will encourage other states to have their own requirements in order not to have their citizens paying for insurance without their state receiving benefits for victims.

1. Concealed Carry as a Start and End in Itself

Mandating gun insurance for holders of permits to carry weapons in public is much simpler than mandating gun insurance in general.  Permit holders are already registered with state government agencies; there is no need for an additional registration system.  They are generally responsible people who have already shown their willingness to cooperate with reasonable regulations.  Insurers will find these people to be desirable customers.  Most measures to deal with gun violence have to deal with the flood of illegal weapons that come from states with weak regulation of gun trafficking.  But, states requiring insurance for permits can simply refuse to recognize permits from other states without insurance requirements or require proof of insurance in addition to such a permit.

Starting by requiring insurance for permit holders is not only easier to implement, but it will address quite a few additional dangers for guns carried in public that do not apply to guns kept for self-defense in the home:

  • Citizens who do not want to be exposed to the dangers of guns have no choice to avoid them.
  • People carrying guns often need to leave them in cars or other less protected places, encouraging theft and misuse.
  • The new “Stand Your Ground” laws often prevent innocent citizens injured in incidents from receiving compensation in shooting incidents.
  • Private property owners and businesses may be at legal risk from the guns brought by their visitors and customers.
  • The “bad guy” in a situation may respond with additional violence perhaps turning a robbery into a murder.

These additional dangers give the states an incentive to make this requirement.  Several states have instituted a provision for issuing these permits under great pressure from gun proponents or even in the case of Illinois from a federal court.  In other cases the state legislature has reluctantly expanded the permit system from a “may issue” system where local law enforcement officials may or may not approve the issuance of a permit based on the need in the particular case to a “shall issue” system where permits must be given to any person meeting defined requirements.  Those states which are uncomfortable with their system of issuing permits are likely to welcome required insurance as a way to provide a guarantee of responsibility on the part of permitees.

Enforcement of the insurance requirement can be made through the permitting process and because it is attached to the person holding the permit rather than directly to identified guns there is no limit to legally owned firearms.  Invalidation of the permit is a readily available way to enforce continuance.  The benefits can be defined by reference to a pre-existing system such as worker’s compensation in any state or no-fault motor vehicle insurance if available in that state.

Example of Possible Legislation for Carry Permit Insurance

 

AN ACT

Relating to requiring insurance for Concealed Carry Weapons Permits and establishing strict liability for injuries and death resulting from firearms used under such permits.

 

SECTION 1. As used in sections 2 to 5 of this Act:

(1) “Covered Firearm” means any firearm owned, controlled or used by a Covered Person.  Includes any otherwise included Firearm which is lost or stolen until the loss or theft is reported to a law enforcement agency in the area where the loss or theft occurred.[a]

(2)  “Covered Person” means any person holding a [Name of Permit].[b]

(3) “Evidence of Insurance” means a card issued by an insurer authorized to issue Firearm Permit Insurance which lists the name of the Covered Person and the dates of coverage and certifies the existence of Firearm Permit Insurance.

(4) “Firearm” has the meaning of any firearm or other weapon that is covered by [Name of Permit].[c]

(5)  “Firearm Permit Insurance” means insurance issued to comply with the requirements of this act by an insurer authorized to issue such insurance by the [State Insurance Regulatory Agency].

(6) “Issuing Agency” means [Name of state permit issuer]

(7) “Worker’s Compensation Equivalent Benefits” means all benefits that would be provided for a similar injury or death arising out of employment under [Workers Compensation Law].[d]

SECTION 2.  Worker’s Compensation Equivalent Benefits Requirement

(1) Firearm Permit Insurance must provide Worker’s Compensation Equivalent Benefits to any person injured in an incident involving a Covered Firearm.[e]

(2) A person injured after display, use or threatened use of a Covered Firearm is considered to be injured in an incident involving the Covered Firearm, regardless of the actual agency of injury.[f]

(3) A person injured in the act of a felony that started prior to the display, use or threatened use of the Covered Firearm may be denied Worker’s Compensation Equivalent Benefits by the insurer.[g]

(4) For the purposes of this section the average wage of any injured person whether or not actually employed or employable shall not be considered less than the average weekly wage of the state.[h]

(5) The minimum death benefit provided for a person killed in an incident involving a Covered Firearm is $100,000.[i]

(6) Nothing in this section will be construed to relieve the owner or user for liability incurred because of injury involving a Covered Firearm.[j]

SECTION 3. Liability Insurance Requirement

(1) Firearm Permit Insurance must provide liability coverage to each covered person in an amount of not less than $500,000.

(2) The liability insurance must cover liability for negligent injury caused by a Covered Firearm in any location.[k]

(3) The liability insurance must cover all liability incurred under section 5 of this act.

SECTION 4. Requirement and Proof of Insurance

(1) Any Covered Person must maintain Firearm Permit Insurance in place at any time a [Name of Permit] is in effect.

(2) A [Name of Permit] is immediately invalidated upon lapse of Firearm Permit Insurance due to expiration, failure to pay premiums, failure to comply with requirements of the insurer or other cause.

(3) An insurer issuing Firearm Permit Insurance must notify the Issuing Agency prior to lapse of Firearm Permit Insurance.  The insurer is responsible for claims under the insurance for incidents that occur prior to 30 days after that notice.[l]

(4) Failure to return the [Name of Permit] to the Issuing Agency within 10 days of lapse of Firearm Permit Insurance is grounds for refusal to reissue the permit for a period of 2 years.

(5) At any time a [Name of Permit] is required the Covered Person must have Evidence of Insurance available for immediate inspection.[m]

SECTION 5. Strict Liability for injuries involving Covered Firearms

(1) The owner or user of a Covered Firearm is liable without consideration of negligence or intent and regardless of any other law granting immunity for any injury involving the Covered Firearm at any location other than that person’s home or a place of business under that person’s control.[n]

(2) This section does not apply to any injury where the injured person is in the act of committing a felony that started prior to any display, use or threat of use of the Covered Firearm.


[a] An important reason for including stolen firearms is that a gun may be taken from the Covered Person or from a place or vehicle where it was left by the Covered Person and used by another.  This is one of the major risks of carrying firearms in public places.

[b] A law enforcement officer is not generally required to have a permit and so would not be covered.

[c] In most states this means that the insurance will not cover long guns.

[d] All states have worker’s compensation insurance systems.  Use of these systems will allow effective insurance to be defined without setting up a new system.  Due the much smaller number of injuries due to guns than to employment accidents this is efficient.  It is also desirable to use an existing system so that the practicality of the system is demonstrated by the preexisting experience.  Most state worker’s compensation systems have rules for intentional acts by co-workers or third parties and for self-inflicted injuries that are workable when applied to gun injuries.    Opportunities for fraud by injured persons are much more limited than in worker’s compensation or in no-fault motor vehicle insurance because guns rarely cause the kinds of soft tissue injury that leads to uncertainties in the diagnosis or required treatment.

[e] Incidents that are covered by the insurance are not limited to those occurring in places where the permit is required.  This is appropriate because persons having permits are more likely to have injuries produced by the permitted firearms in their homes and places of business.  They may have additional weapons and keep these weapons outside of locked storage in readiness for taking them into the community.

[f] An example of another agency is that the use or threatened use of a Covered Firearm may elicit return gunfire or other hostile behavior from the person against whom the use or threat was directed.  A person may also be injured in attempting to flee the area where the Covered Firearm was used.

[g] The limitation of the denial to felonious acts started prior to the use of the Covered Firearm is because after the incident starts, there may be a response with an unclear or controversial nature.  It insurer should not be allowed to use this uncertainty to deny coverage.

[h] Average weekly wage is defined in most state worker’s compensation systems.  It is important that there be compensation to persons who are not employed currently or are unemployable due to being children, having the duty to care for another person or being disabled prior to the shooting incident.

[i] This is higher than for motor vehicle insurance in most states, but should not be excessive for the states likely to initially adopt this insurance requirement.  In most cases the limits for motor vehicles were adopted in the past and would be higher if set today.

[j] Worker’s compensation insurance usually relieves employers of other liability.  It is not the intention of defining benefits as Worker’s Compensation Equivalent Benefits include this limitation on gun owners responsibility.

[k] The Strict Liability in Section 5 is limited to places outside the Covered Persons home or business.  Negligent liability should apply everywhere as it not does.

[l] This gives the issuing agency time to invalidate the permit and take other enforcement action.

[m] A law enforcement officer who stops a person with a Covered Firearm will be able to check the card in order to take enforcement action.

[n] This language is intended to override any “Stand Your Ground” or other immunity law.  The limitation to places other than a home or place of business is to limit the strict liability to places where the permit is required.

The Need for State Regulated Gun Insurance with a Federal Mandate.

The answer to the question of whether we need to mandate gun insurance at the federal or the state level is to have the mandate at the federal level and the regulation of the insurance at a state level.  The special problems that guns have of illegally traveling across state lines to do their damage and of states varying so much in their willingness to regulate guns can be solved by this structure.  The federal mandate should implement the top-down process for continuing insurer responsibility advocated by this blog.  It should require that the insurance pay benefits to victims in accordance with the gun insurance requirement in the state where the shooting occurs.

One of the special difficulties that makes guns different than almost any other risk, is that move around from state to state so easily once they are in illegal hands.  Much of the country has a relatively small problem with illegal guns and people there see no need to make access difficult.  In other parts of the country, there is a major problem with death and injuries from illegal guns.  No matter how carefully places like New York, Chicago and Washington, DC work to stop the transfer of firearms to dangerous people they cannot control the flood of weapons that come in from areas with more permissive policies. The process has been named the Iron Pipeline.

This blog believes that requiring insurance is a practical way to deal with the problem.  Insurers that remain responsible for deaths and injuries from guns after they pass into illegal hands will set up conditions to prevent that passage.  They will find ways to do this that are minimal inconveniences to legitimate gun owners.  The question is how to get a requirement for such insurance into place in this environment.  The states that sell the most guns are least likely to make such a mandate.

Insurance in this country is normally regulated by the states.  The McCarran-Ferguson Act requires that if Congress wants to regulate insurance on a federal level, it must do so  explicitly.  The two major models for gun insurance, worker’s compensation and motor vehicles, are handled by the states.  It’s likely that gun insurance will also be state based but will require a federal mandate to make certain it is in place.  The certainty should come from a “top-down” requirement that makes a insurer retain responsibility for a particular gun until and unless responsibility is picked up by another insurer, regardless of any intervening events such as loss, theft or illegal sale.

The way to handle the need of some states for strong protection from the consequences of firearm injuries and of the desire of other states to put no expenses or limitation on the acquisition of firearms is to have the federal requirement specify that the benefits paid by the mandated insurance be set by the insurance requirement of the state in which the gun causes the injury.  If an insurer does not want to be exposed to the more generous requirements of some states then that insurer will take steps in the terms of the insurance to insure that the gun does not travel to those states.  For example, if Virginia has small benefits and New York State has generous benefits, then insurers will have an incentive to make sure that guns are not illegally sold to people who will take them to New York and sell them on the streets.

Once Congress is considering such a requirement the states will have an incentive to adopt a gun insurance requirement for guns sold in their own states in order to protect their citizens from illegal guns that come from outside their borders.

Registration of guns and confirmation of insurance

In order to have a system of insurance the covers the dangers of having guns in our society, it is necessary to have a way to be sure that insurance exists that covers each victimization. The simplest system is to mandate the insurance and have the government check that it is in place. This requires that the government be aware of the identity of the gun owners in order to enforce the mandate. This means registration of guns or gun owners. The political objection to this is very great. If it is necessary to override this objection or wait for it to dissipate, then implementation of insurance for gun victims will be greatly delayed.

The Objection To Registration

Many people who are concerned about gun safety are not aware of the depth of the fear of government held by some of the gun rights defenders. There are a considerable number who have deep and broad paranoia which has been focused on this issue with severe personal mental health issues but an even larger number are simply trained to express this distrust by gun organizations, the media and those who want even more guns in circulation. Even more are aware that some form of tracking guns is essential for application of many measures to control or limit their circulation. They may fight registration of firearms as a way to prevent control of firearms.

A good bit of this concern has been embedded in current federal laws. There is law in place forbidding a federal registry of ordinary guns (not including NFA items such as machine guns). The Brady Act and the Firearm Owners Protection Act both have such provisions.

The concern about registration of guns leading to confiscation also forms a part of much of the writing that’s done about the guns in the current material circulating on the Internet. For example in an article dated February 27, 2013 titled “Debunking the ‘no one wants to take your guns’ myth” which is featured on the website The Truth About Guns and is about New York’s new law which outlaws or limits certain types of weapons the author first states:

And given New York’s history, its not unlikely that such registration is simply a precursor to a complete and total door-to-door confiscation down the road. Since they now have a convenient list of gun owners.

And then later in the article:

And the removal of a grandfather clause from the proposed legislation can only mean that full-scale confiscation is in the offing. They are, indeed, coming to take away our guns. Even the “hunting rifles.” And those who are still trying to pass off that old lie are either too ignorant of the proposed legislation or too entrenched in the party rhetoric to understand the lie they’re spouting.

In another article on that same site titled “Chicago Firearms Confiscation Begins” the first sentence is “There’s a good reason that law-abiding gun owners don’t want their names on a national gun registry – namely registration leads to confiscation ….” This is taken for granted by a salient group of writers and advocates for guns. They generally don’t make any arguments as to why registration would necessarily be a first step to taking guns away from current gun owners but assume that their readers are already convinced that that will happen. They are glad, however, to point out any situation that they can interpret as a confiscation following on some form of registration. They also assume that the government will take any steps that are possible to forward that process. For example, one of the primary objections to requiring insurance for guns is that the government could, at least theoretically, force the insurance companies to turnover their lists of customers. I have not found any objection to the National Rifle Association compiling a huge list of gun owners going well beyond their membership.

An Insurance Requirement without Additional Registration

Permits to carry guns are a form of registration in themselves, but they exist in many states. As has been pointed out on this blog, carrying a firearm in public creates an array of additional dangers to the public. Additional registration of gun owners would not be necessary, but it would be highly desirable to have insurers aware of the serial numbers of the guns covered and have guns reported if the owner loses control of the gun. That way insurance could cover cases where the gun was lost or stolen and then resulted in a shooting.

For a general insurance system, this blog is recommending that “Top Down” or chained insurer responsibility be employed to guarantee coverage. Insurance would be required of manufacturers with a provision that the insurer only relinquishes responsibility for a given gun when another insurer take it up. Making that absolute no matter how the gun changes hands will make sure than once a gun is insured it will stay insured, without requiring that anyone other than insurers track the gun. Let the gun owners buy their insurance through the NRA if they don’t trust other insurers.

John Wasik Calls for Gun Insurance Again.

In a new article published Sept. 20, 2013 on the Forbes website and titled “Five Reasons Why Gun Insurance Can Survive Political Indifference”, he advocated for insurance as the most effective and practical solution to gun violence in more detail than ever before.  Wasik is a pioneer in pointing out the need for gun insurance starting well before the tragic incident at Sandy Hook.  His prior articles include:

February 15, 2011 in Reuters: “Why gun insurance should be mandatory

December 17, 2012:  “Newtown’s New Reality: Using Liability Insurance to Reduce Gun Deaths

December 29, 2012: “Gun Liability Insurance: Still a Viable Proposal

April 4, 2013: “Gun Insurance: An Economic Argument

His five reasons are:

1. Liability Coverage Addresses the Issue of Potential Future Harm Better than Any Gun-Control Legislation.

Wasik says the liability laws evaluate harm well and insurers will have an incentive to pressure gun owners for safety.  He does not mention no-fault principles which would be needed for effective general coverage.

2. Liability insurance should be required of all sellers and manufacturers.

He points out the importance of their responsibilities in selling and distributing guns.  He alludes to but does not explicitly state that their responsibility might continue to guns that were improperly sold and not insured by purchasers.  This chain of continuing responsibility is the core of this blogs advocacy for getting insurance in place to cover all gun injuries.

3. Liability Insurance is good business.

Wasik points out that the additional business should be welcomed by insurers and agents.  He does not point out that the insurance industry adamantly opposes any mandates for insurance in any area.  As this blog has often stated, this is because insurers think that mandates will bring regulation and especially regulation of prices.

4. Insurance is an accepted economic vehicle that’s been around for more than 200 years.

This is certainly true. Over that long time every new form of risk that has appeared has resulted in innovative solutions from the insurance industry.  Guns are the only important activity that has a substantial danger unaddressed by insurers.

5. The social costs are staggering and insurance can cover some of them.

Wasik mentions the medical costs which are only a part of what insurance should cover.  Worker’s Compensation and some Motor Vehicle insurance covers many economic damages—loss of work and support of dependents.  Even with these costs spreading them of the the huge number of guns to be covered would make insurance affordable.  The existence of an insurance requirement would reduce the number of incidents through it effects on safety and reduce the cost further.  It would also reduce the even greater costs of gun violence that are spread throughout society rather than concentrated on victims of shootings.  Costs such as reduction of property value, avoidance of activity through fear and the cost of protective measures.

John Wasik recognizes that dealing with guns is a difficult task for our society and will take a long time, but that insurance is one of the best tools we have.

NYT OP/ED’s on Gun Manufacturer Responsibility—Insurance by Other Means

This is hot stuff!!  A very heartening reminder that the drive to establish a responsible gun policy in our country is here to the finish.

A pair of important OP/ED’s to hold gun manufacturers responsible for the injuries they create has been published in the New York Times.  The first “Make Gun Companies Pay Blood Money” by Lucinda M. Finley and John G. Culhane advocates a compensation fund to pay victims of gun violence financed by a tax on gun manufacturers or importers.  The second “Let Shooting Victims Sue” by Robert M. Morgenthau calls for rolling back the special laws that protect gun manufacturers and others in the gun trade from liability for the damage their wares create.

Make Gun Companies Pay Blood Money

Finley and Culhane’s compensation fund would be similar to no-fault insurance in the benefits it would provide for victims.  They envision:

For every gun sold, those who manufacture or import it should pay a tax. The money should then be used to create a compensation fund for innocent victims of gun violence.

This proposal is based on a fundamentally conservative principle — that those who cause injury should be made to “internalize” the cost of their activity by paying for it.

This is a very straight forward proposal.  They make the comparison to the existing system for protecting people injured by vaccines with a tax on the manufacturers.  That system has worked for years to facilitate vaccine manufacture and use, to compensate those injured, and to give greater confidence to the public.

As a form of insurance, it would accomplish one of the main goals advocated by this blog in compensating victims.  Because it is attached to neither the specific guns or the specific gun owners, it can avoid the major problem of covering guns in the hands of persons outside the law–who could not be compelled to purchase insurance.  It would not, however, contribute greatly to the second goal advocated by this blog—encouraging gun owners and users to have practices which reduce the level of injuries.  That’s were the second plan meshes perfectly.

Let Shooting Victims Sue

Robert Morgenthau’s proposal is to roll back the 2005 federal law the Protection of Lawful Commerce in Arms Act which protects arms manufacturers and sellers from almost all responsibility for their products after they are sold.  He states:

This kind of legislation encourages arms dealers to turn a blind eye to the lethal consequences of what they peddle, and rewards their breathtaking irresponsibility.

An executive at one top gun company admitted that it didn’t try to learn whether the dealers who sold its firearms were involved in the black market. “I don’t even know what a gun trafficker is,” he said in a court deposition reviewed by The New York Times.

Morgenthau goes on to describe the out of control gun violence that we currently have in this country.  He points out the deprivation of the rights of states to protect their citizens and states “a basic principle of law that imposes liability when someone’s unreasonable act results in foreseeable harm to someone else.”  He also gives historical parallels with the tobacco and motor vehicle industries being brought from a condition of causing many deaths to a much greater safety today.

Insurance by Another Means

This blog exists to advocate insurance to compensate shooting victims, encourage safe practices and not be an excessive burden on gun owners.  These proposals if both were implemented would accomplish the greater part of that mission.

Opposition to Mandatory Insurance in 1929

It’s becoming clear that the underlying reason for insurance industry opposition to requiring insurance for guns is the latest move in a very old battle to keep the government out of regulating insurance and leaving the path clear for insurers to maximize their interests and profits.  In a fascinating book from 1929 presenting both sides of the debate Edison L. Bowers, its editor from Ohio State University, wrote in an introduction:

No large group of persons stands as sponsors for compulsory automobile insurance in any of its forms, although an association has been formed to promote the compensation insurance idea. As already suggested, however, there is a strong undercurrent of public opinion to the effect that something needs to be done to curb the growing menace of the automobile, and that compulsory insurance of some sort will help in that direction. The opposition, on the other hand, is much better organized and considerably stronger. Both the United States Chamber of Commerce and the American Automobile Association have declared against compulsory insurance in its present contemplated form. The latter organization opposes it particularly on the ground that such insurance would not prevent accidents, which end is the basic issue in the problem.

 

The strongest opposition comes from a source least expected. The insurance companies have definitely declared against compulsory insurance. Their attitude has added new fuel to the controversy. It has raised the old issue of the “vested interests” versus the public. … the private interests present the argument that legislation should never invade the realm of private enterprise, that any change contrary to the welfare of private interests is un-American, socialistic, and perhaps unconstitutional.[i]

By the time compulsory insurance was being adopted in New York State in 1956 at least 85% of the motorists in that state had voluntary insurance with almost no regulation of terms and rates.  The insurers were loth to allow a mandate which they were sure (and correctly so) would lead to regulation and especially regulation of rates.  This history indicates that the insurance industry is no friend of the public but it will bend to the public will when it is finally expressed and then will serve the public.

[i] Edison L. Bowers, “Introductory Note,” in Selected Articles on Compulsory Automobile Insurance: Liability and Compensation for Personal Injury, ed. Edison L. Bowers (The H.W. Wilson Company, 1929), 16.