The most important characteristic of the insurance needed for owning or carrying firearms is the basic structure of who is protected and paid by the insurance. Voluntary insurance is always designed to protect the insurance buyer or owner first and pays third party victims only when necessary to protect the policy holder. Required or mandatory insurance is intended to protect the public and persons other than the policy holder, and should promptly pay insured persons.
The District of Columbia is scrambling to react to a Federal District Court decision that threatens to invalidate the ban on carrying guns for self-defense in DC. The current law in accordance with the direct decision by the Supreme Court in Heller v. DC forbids carrying guns outside the home except by certain classes of armed professionals. There has been a 90 day suspension of the application of this decision for an appeal which could be used to enact legislation which allows registration for that purpose. If DC is required to allow individuals to carry guns in public there are various options in regulating such carrying that are in accordance with the recommendations of this blog.
They should certainly increase the level of responsibility that gun owners have if their guns result in injury. They can pass provisions in the Municipal Code which are parallel to the specific requirements that give motorists a duty not to follow so closely as to strike other vehicles in the rear and a duty not to strike pedestrians in crosswalks. There should be provisions in the DC Code to establish a duty, with a presumption of negligence if not followed, to avoid the following:
- Allowing a gun to make an unintentional discharge.
- Allowing a gunshot to strike an unintentional target or a person not intended to be shot.
- Allowing a gun to get into the hands of an underage person or a person prohibited from possessing firearms.
Ideally, we should adopt a system of insurance that protects and compensates all of the victims of gun violence as a single well thought-out package. The various terms would weight the balance between minimizing the interference with responsible peoples use of firearms and the need to keep them away from irresponsible people. There are many factors that should work together to give the best overall results. But, that isn’t the way that most systems of control and regulation are developed. They come about incrementally. Even before we adopt any requirements for ordinary gun owners and users to be covered by insurance, there are are changes that could set the state. Insurance is a means of maintaining a system and culture of responsibility. Keeping and use of firearms, unlike any other activity in our society, has accrued a large number of provisions, legal and of other kinds, to promote a culture of irresponsibility. If this is rolled back in stages, use of insurance will emerge as a natural step. It will be so because it will be a way of facilitating the responsible use of firearms in a context of demanded responsibility.
Much of this blog is about how insurance should be designed and how it would work if an ideal insurance mandate was in place. Opponents of such a mandate point out real and imagined problems that would prevent such insurance from working. When the possibilities are examined the problems turn out only to apply to particular models of insurance and can be avoided by designing the insurance for the particular nature of guns and gun violence.
But there are also transitional problems that could block adoption of an insurance mandate that would work well once it was in place. The most important of these problems is the fact that gun insurance that would protect victims does not exist currently. The insurance that is designed to protect gun owners from accidental or self-defense incidents is very narrow and is not adapted to the need to protect victims even to the extent that existing liability laws could allow the redress in the courts.
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.
Senators Dingfelder and Burdick with Representative Denbrow have introduced a bill in the Oregon Legislature (SB-758) which is the first effective plan for gun insurance that would provide for victims. It works by imposing strict liability on a gun owner for injuries associated with a gun even for one year after the gun is lost or stolen. There is no limitation to economic damages as is typical of no-fault motor vehicle insurance. The limits are set quite high at $250,000 for physical injury or death. Continue reading
No-Fault Insurance is quite similar to the legal doctrine of strict liability. When strict liability applies it is not necessary for the injured person to prove negligence or fault to hold a person responsible for damage from a certain cause. It is often applied in Product Liability cases where it usually holds if the injured person can prove the product is defective, the product proximately caused the injury and the product was unreasonably dangerous. After years of attempts to apply this to gun manufacturers where it generally did not apply because product was not found to be defective, Congress passed a law (Public Law 109-92), which among other Continue reading