New Analysis on Guns, Insurance and the Second Amendment by Lund and Gilles.

A paper “Mandatory Liability Insurance for Firearm Owners: Design Choices and Second Amendment Limits” has been published by Nelson Lund of the George Mason U. School of Law and by Stephen G. Gilles of the Quinnipiac University School of law. While there have been simple calls for requiring gun insurance and comparisons of guns and cars at various times, Nelson Lund’s paper of 25 years ago “The Second Amendment, Political Liberty, and the Right to Self-Preservation” in the Alabama Law Review is the only serious and significant source known to this blog to address the issue prior to the Sandy Hook incident. The title of the new paper fairly describes its focus. Many issues of interest to those who want to think about the possibilities of using insurance to protect the public and compensate shooting victims are raised.

The authors of the paper are among those who believe that the Second Amendment gives individuals wide gun rights and that the narrow findings of the Heller decision only start to describe the limits of governmental regulation in this area. Others believe that Heller was the product of a momentary and ideological combination of justices which will not be expanded and will eventually fade in importance or even be overturned. The paper takes the view that, even under the broad interpretation of the Second Amendment, mandated insurance may have a role in containing gun violence. It does, however, see that role as being much more limited than does the author of this blog.

While this blog does not consider the Second Amendment as a major barrier to implementing effective gun insurance, many others do. This new academic analysis by widely respected conservative philosophers and thinkers is very valuable in laying out the nature of that objection. The paper should be read and considered carefully by anyone who is serious about understanding the possible role of insurance in dealing with America’s gun violence problem.

After some introductory material on the nature of insurance and the Second Amendment, the analysis begins by breaking the possible gun incidents into categories of intent. The first of these, malicious shootings, is declared to be rare.

The vast majority of these crimes are committed by habitual lawbreakers who would be unlikely to comply with such a regulation. There will be the occasional “crime of passion” committed by an individual who has previously been a law‐abiding citizen, but such incidents appear to be uncommon.

An examination of the many listings of shootings reported in local media, now available on the internet, shows that many apparently law abiding citizens are involved. Until scientific studies of gun violence are resumed, we are dependent on media reports which understate the problems to an unknown degree. The stream of reports is, however, enough to rebut a characterization of “uncommon.”

The authors of the paper also opinionate that legislatures would refuse to require and insurers would refuse to provide insurance that covers malicious acts because such insurance may shield wrongdoers. They point out in a note that court cases allow such coverage in a couple of states, but they think it’s exceptional. This blogger thinks that such cases are not more common simply because such injuries are rare with motor vehicles and because in many motor vehicle cases there are other ways of providing by means of the victims own insurance or no-fault laws.

This blog has pointed out many times that there types of insurance that provide broad protection for third parties when otherwise insured persons commit torts or crimes. The “separation of interests clause” that protects employers from liability for the acts of employees is an example, another is the “open mortgage clause” which pays lenders for building owners who commit arson. The authors do not address these cases which are based on business necessities rather than mandates of law.

The “Top-Down” concept that this blog supports requires insurers, once responsible for a gun, to remain responsible until another insurer takes it up would if properly implemented guarantee that insurance would be in effect for gun users who have improperly acquired their weapons.

The other objections are based on the author’s more expansive view of the Second Amendment.

The fourth category, negligent entrustment and storage, is very interesting. The authors state that liability for clear negligence is not problematic but worry that:

The risk that courts will succumb to the expansionary temptation, and respond to mandatory insurance statutes by adopting constitutionally invalid tort theories for gun owners, provides yet another reason for extreme care in drafting this type of legislation.

There is room for wide disagreement of the unconstitutionality of expanded tort theories. While this blog would support broadening tort theories to include responsibility for guns that are improperly transferred for stolen, no fault insurance would get around this problem. Insurers should be required to view the loss or theft of a gun as an event to be insured against which does not require it to be a source of owner liability.

Regulatory Pathologies

The most important part of the paper for this blog’s readers was under the heading above. It is important to have gun insurance used for the purpose of protecting and compensating the public and shooting victims and not be a covert way to punish gun owners. The Second Amendment aside, this is critical for any foreseeable political process of getting good insurance adopted.

These problems will be discussed in comparison with the insurance methods most recommended by this blog. They consist of a no-fault system with the primary payer being the insurance attached to a specific gun and a hierarchy of payment sources ending with a pool funded by all insurers in proportion to premiums earned. This is very similar to the systems for motor vehicles in Michigan and New York State. The terms of the insurance will include a provision that an insurer, once responsible for a specific firearm, cannot relinquish responsibility until that firearm is taken up by another insurer. This special provision is called “Top Down Insurance” in this blog.

The paper’s first item under this heading is the possibility of “disguised taxes.” The tax envisioned is to have a fund paid for by all gun owners to pay all injured persons. This is, of course, just what is needed. The paper states:

The use of a government regulation to force law‐abiding firearms owners to bear the costs of wrongs committed by those who own and use firearms illegally would violate the Second Amendment whether the coerced transfer occurred on a large scale, as in the foregoing hypothetical, or was introduced in camel’s‐nose fashion.

The essence of “camel’s-nose fashion” is that it leads inevitably to having the rest of the camel in the tent, so we should look at the extent when the system is fully developed of the additional contribution of the premium paying gun owners to the losses from the non-premium payers. This blog assumes that for constitutional purposes the car as the means for the right to travel is analogous to the firearm as the means for the right to self-defense and that, when the dust settles, practices acceptable for cars will be acceptable for guns. Any differences should be based in the actual differences in how the two classes of devices are used in practice.

No-fault car insurance usually has a hierarchy of payment sources with a low priority payer of last resort being a pool funded by all insurers in proportion to the premiums each insurer earns. That hierarchy can start with the injured persons insurance (which I do not recommend for guns, in order to have insurers have a greater stake in safe gun practices) or with the car owners insurance. If the pool is too heavily used there can be problems even with car insurance. For example, there is a lot of current controversy in Michigan where the pool pays for unlimited lifetime medical care for injured persons who exhaust the limits of the regular no-fault insurance. One of the major reasons for the strong means recommended as “Top Down” insurance by this blog is to have enough guns insured to reduce the size of this pool. Controlling the size of the “Uninsured Gun Pool” is also a reason to have strong procedures to trace guns involved in incidents and to exhaust every other kind of insurance including Medicaid before relying on the pool.

Other concerns of the paper are the possibility of using insurance as a “disguised gun registration” and enforcement of the mandate in general. This is primarily presented as a practical problem. There is a suggestion of a constitutional problem with requirement of proof of insurance with each subsequent sale, but the analogy of restrictions on transfer of firearms with prior restraint of speech does not seem valid to this blogger. Top Down Insurance makes registration of individual owners by the government unnecessary. The details are explained in other posts on this blog.

The next topic is the possibility of “Excessive Minimum Coverage Requirements.” The paper suggests the analogy with motor vehicles forbids higher requirements for firearms than for cars. This is based on the paper’s position about the type of constitutional protection afforded to guns themselves rather than to the defense interest of persons. This blog does recognize that this area has possibilities for abuse by those who would use insurance as a backdoor ban on guns. The differences should be grounded in real differences in the uses and risks of guns and cars.

The last topic here is the possibility of “Burdensome Private Regulation by Insurers.” Mandated insurance would establish a large market which is likely to have vigorous competition which would discourage such practices. If the market becomes dominated by one supplier it is likely to be the NRA itself, which currently sells most of the gun insurance purchased by individuals. If insurance requirements or regulations restricted the supply of insurance to create de facto regulation, it could be a problem.

It is very welcome to this blogger to see evidence that the core problems in getting insurance to protect gun violence victims is less a matter of ideology and more a practical matter of accommodating the needs of insurers, gun owners, victims and the wider public.

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