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.