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.
When a proposal for requiring insurance for guns is put into a blog discussion, many of the strong pro-gun advocates reacting to the post base their objection on rights as they assume they have them from the second amendment to the US Constitution. These assumptions can be very broad. And I see statements such as “what other rights do you have to pay for?” and “paying for gun insurance is like a Poll Tax.”
Well, I see us paying taxes on the means necessary to exercise a right all the time. Look at your phone bill, it’s full of taxes on a means to communicate. You have a right to travel, but pay taxes on cars and on air and rail tickets.
Poll taxes are really obnoxious, especially the way they were historically used, but they were not found to be unconstitutional until a specific amendment (The 24th Amendment to the US Constitution) was adopted. There is no similar amendment for gun rights. It’s interesting that rather heavy taxes for automatic weapons have never been found to be unconstitutional.
District of Columbia v. Heller is a very narrow decision in itself. It only overturns an extremely restrictive law that totally prohibits gun ownership. Later the court extended it to state laws in another case, McDonald v. Chicago. Since then lots of restrictions on gun use and ownership have been upheld by state courts. Whether the Supreme Court will strike a broader range of gun restrictions in the future is unknown. While lots has been written by legal scholars about the subject, the future path of this law will probably be determined by political considerations. Heller was supported by 5 justices with a strong dissent by 4 justices. It’s possible that it could be rolled back to the old view that any right to bear arms did not apply to individuals or it’s possible that it could be broadened.
As far as insurance is concerned, the system supported by this blog only requires regulations applied to the manufacturer of guns. Any requirement that the insurance be transferred to the subsequent owner, as would be needed to let the manufacturer’s insurer relinquish responsibility, would be a private contract.
There are lots of posts, comments, OpEds and media articles about requiring liability insurance for guns since Newtown. In fact, you can find a dozen (or many more) less than 24 hours old by searching “gun insurance” on your favorite search engine. They tend to fall into three categories—advocating that we have it, denouncing it as an assault on gun rights or regretfully explaining the impossibility of making it work. All of these categories are based on conventional liability insurance mandated in various amounts up to about $1 Million. The purpose of the insurance advocates often seems to be to punish gun owners for the danger they give to society and is seen as a back handed way to ban guns by the gun advocates. I think insurance, if differently structured, can be a way to deal with the deaths and injuries associated with guns without unduly burdening people who want to own and use guns.
There are two major goals that are served by a good system of insurance here, first to provide compensation for persons injured and, secondly, to allow the costs of gun violence to fall on those who can do something about it. In addition to the deaths, approximately 75,000 persons per year are non-fatally injured by guns according to the CDC. Continue reading
Megan McArdle has written a long piece in The Daily Beast entitled “Should People Be Forced to Buy Liability Insurance for their Guns?” It is by far the most detailed and thought out analysis of the suggestion that I have seen since Newtown. While I don’t agree with her conclusion that the problems make insurance as a solution unworkable, she gives logical reasons that need to be addressed.
She starts with three reasons that we would want insurance. The first is to Continue reading