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GUN-OWNER LIABILITY INSURANCE – REALLY?

INSURANCE SOUNDS LIKE A GREAT IDEA, UNTIL YOU THINK ABOUT ITS CONSTITUTIONALITY OR WHETHER IT WILL MAKE ANY DIFFERENCE AT ALL

First, as a reminder, I am in FAVOR of new laws or rules that will have a MATERIAL impact on mitigating all forms of gun violence AS LONG as the perceived societal benefits do not outweigh our constitutional rights nor the ability of law-abiding gun owners to defend themselves in a reasonable manner. Thus, I agree with background check enhancements that can help keep guns out of hands of the mentally ill and criminal. I also favor greater funding for police to get illegal guns off the streets since the majority of “gun violence” involves illegal weapons used illegally. That said, I am against magazine capacity limits generally, and especially for self-defense handguns as such limits will have NO effect on suicide, accidents, domestic shootings and crime since large round

So, we come to the latest craze among those wishing to ostensibly limit “gun violence” – forcing law-abiding gun owners to buy liability insurance. It is being talked about everywhere and has been introduced in various bills in California, Maryland, Massachusetts, Pennsylvania, New York and, here in Connecticut.

I will leave to those in favor of such a scheme to explains its rationale, its goals, its potential structure, how it might be priced, ensuring complaince and what impact they REALLY think it will have.

Aside from media and web discussions of gun-owner liability insurance, I most recently heard the idea voiced by Professor Saul Cornell at this past Monday’s gun violence information meeting at the Redding Community Center. Professor Cornell, as he is apt to remind everyone, may be the nation’s  most well-versed historian on Second Amendment matters. He is also inclined toward much greater gun control and helped Washington DC write its SCotUS brief in Heller.

From my perspective, I hear two arguments being made to support this radical concept:

(1) Shift the cost of gun violence from society at large to owners of firearms and/or

(2) Increase the cost of firearm ownership to dissuade citizens from owning a firearms or owning too many firearms (what egghead economists call the “negative externality” of gun ownership).

Those proposing these ideas have not come up with something new nor novel. Similar bills have been introduced over the past decade but none of them have survived the legislative review process to become law. Sadly, these bills come up after every high-profile shooting hoping for a moment of societal weakness, but have thus far failed when put under a real-world review of their merits. Will they succeed this time?

Those who propose such laws use automobile liability insurance as their “real world” analogy to what they would like to do for gun owners. This is a great marketing ploy to get non-gun owners to agree that it sounds sensible: “If I have to have liability insurance for my car, why shouldn’t gun owners have such insurance for their guns.”

This will get too long if I try to hit every point possible so I will provide some links to more learned discussions below. I will also say that I am neither a lawyer nor an insurance professional so this is the perspective of a concerned parent, sentient gun owner and someone who has spent more time than I care to admit learning about guns, gun laws and gun crime.

THE “CAR INSURANCE" PRECEDENT/ANALOGY

Those who suggest that gun owner liability insurance (“GOLI”) is “no different” than car liability insurance clearly have not thought through that simple argument. Sure, being able to drive your owned automobile requires registration of the vehicle and maintaining a minimal level of liability insurance in case the owner causes property damage, personal injury or death. Generally, that sounds like the desired outcome of a GOLI scheme.

Except, being able to drive a car in our society is a PRIVILEGE that is granted by authorities on behalf of society at large. Driving a car is NOT a constitutional RIGHT granted at either the federal or state levels as is the right to bear arms for defense of self and state. THAT is a huge distinction that seems to be lost on those supporting forced GOLI.

Consider, if GOLI is a pre-requisite to buying a firearm, or a requirement for the continued ownership of a firearm, it is a cost that must be borne by the owner in order to exercise the constitutional right to bear those arms. Irrespective of the dollar amounts involved, it is a defacto tax on firearm owners. How is this tax on the expression of a citizens constitutional right to bear arms different than Reconstruction-era poll taxes used to prevent black voters from expressing their rights to vote? The Twenty-fourth Amendment, passed in 1964, reads:

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

So, a poll tax meant to inhibit voting and was found to be so egregious and rights-violating as to require an amendment to fix it. How is a poll tax different from an insurance scheme involving government mandated premiums (“taxes”) that will inhibit the right to bear arms? More over, how is this scheme not regressive since it puts far greater financial inhibitions on less wealthy law-abiding gun owners? Especially so for citizens from our poorer neighborhoods where the protection of a self-defense firearm is most critical?

OK, let’s move on to the idea that GOLI will be a method of mitigating overall gun violence.

REDUCING “GUN VIOLENCE” – RAMPAGE MASS MURDER

Let’s all be honest with ourselves, we are having this discussion today because of the Newtown massacre as the latest in a disheartening string of massacres perpetrated by the criminally insane. When polite people in the suburbs say they want to “protect the children” or “reduce gun violence” they are talking about that which might effect them locally. They are not talking about the day-to-day violence in our urban communities where there is a disgusting but regular pace of gun-related injuries and deaths, mostly of young black men. So, I can not help but feel that those calling for rifle bans, magazine limits and now GOLI, are less worried about these “far away” and “less visible” issues and more concerned about what might happen just up the road. Beyond that, let’s all agree that no GOLI scheme is going to deter the crazed psychopath from planning, equipping and implementing their sick plans to inflict carnage on society. While a fully functioning GOLI scheme might make it a bit harder to get to firearms, there is no stopping the determined psycho.

REDUCING “GUN VIOLENCE” – SUICIDE & ACCIDENTS

More than half of all gun-related deaths in the USA are due to suicide – a hard fact. Thus, an argument could be made that having to implementing a GOLI scheme might make gun owners more mindful of secure storage and minimizing access to their firearms by the unauthorized. However, if the gun owner is the one who is suicidal, what impact will there be on their suicidal intent of having previously paid insurance? Also, if gun owners are the only ones involved in an accident, how does GOLI impact that? Yes, a third party being injured or killed in an accidental discharge might be a “pay off” event but even that is subject to the insurance company’s interpretation of the circumstances.

REDUCING “GUN VIOLENCE”  – DOMESTIC/KNOWN SHOOTERS

Statistically, domestic or known shooters situations make up a large part of non-suicide, non-accident, non-“criminal activity” gun violence. As will be discussed below, many such shooting involve illegal guns owned by those disqualified from lawful ownership, thus, they will never be insured. And for those who might be insured, in a moment of rage great enough to lead to their discharging their weapon, do you think that person will care about insurance?

REDUCING “GUN VIOLENCE”  – CRIMINAL VARIETY

I have seen varying estimates regarding non-suicide, non-accident gun injuries/death suggest that from 75-90% of such injuries/death are caused by illegal handguns wielded by those in possession illegally. By definition, these criminal users of firearms not only ignore laws (duh!) but will also ignore any insurance requirements. Thus, the argument that GOLI scheme will reduce such incidents of gun violence fails on the logic test that the majority of these incidents will happen outside the potential insured pool of law-abiding owners.

COMPLIANCE WITH A GOLI SCHEME

There is no central registry of gun ownership in Connecticut nor any other state. While the state may have records of retail sales and first ownership of a retail sold firearm, there is no record-keeping thereafter (a discussion for another day). Also, there are NO records of guns bought at retail prior to the keeping of records in the 1990s. Thus, there is no way of knowing who might have to buy insurance in the first place. Sure, the law-abiding gun owner who carries a concealed pistol in public will likely want to have insurance in order to carry. However, most firearms rarely see the light of day and some can stay in safes for years without usage. How does a GOLI scheme work if those owners decide to not get the insurance?

The question of compliance raises more issues discussed in an excellent article written by Megan McArdle at The Daily Beast:

“And even if you got them to buy it, how do you get them to keep paying their insurance premium? One month of even very expensive insurance is not such a big barrier when the gun itself costs hundreds of dollars.  Envision the set of policies that would be necessary to ensure that the population of young, asset-poor people with black market connections who you are trying to target actually pay their insurance premiums every month. It's breathtaking: gun registration, frequent inspections, an insurance regulator empowered to seize any money from your bank account. And just how many young drug dealers even have bank accounts, or paychecks to garnish?

One in seven drivers in America is uninsured.  That's despite the fact that they are driving a large, hard-to-conceal object which is regularly inspected by the fleet of parking and traffic enforcement professionals hired specifically by governments for this purpose. 

Most places don't even have gun registration laws--not because no one's thought of it, but because they're really difficult to get through the legislature. But even if they did, they'd be very hard to enforce.  A car is prominently visible on public roads and streets.  A gun is not.”

APPLICATION TO LIABILITY FOR STOLEN WEAPONS

Those pushing GOLI also argue that too many guns in illegal hands are stolen and law-abiding owners have to be made more conscious of their firearms as a target of burglars (that “negative externality” issue). All of my firearms are locked up or secured in one way or another but not all owners are as diligent. So the thinking is that making the gun owners liable for what happens should his/her firearm be stolen might be a deterrent of some sort. But this is another way that the car insurance analogy breaks down – owners are not liable for the criminal activity of others using their stolen items. If a car thief jacks your car and gets involved in an accident in the getaway, neither you nor your insurance company have liability at that point. The same would be true of a stolen firearm negating the “teeth” in the idea of compulsory insurance?

APPLICATION TO LIABILITY FOR CRIMINAL BEHAVIOR BY OWNER

Read almost any of your insurance policies and you will note that the insurance coverage becomes null and void in almost any instance where a claim is triggered by any criminal behavior of the person covered by the insurance. Burn your house down, no claim. Run your car into a lake and claim it was stolen, no claim. Rob a bank and get into an accident in the getaway, no claim. Drive your boat drunk and get into an accident, no claim. Get sued for any of these unlawful acts, not liability insurance claim. So, if a previously law-abiding gun owner “snaps” or otherwise involved the firearm in an illegal activity, the odds on the GOLI paying off are very low, if not zero.

REDUCING THE COSTS OF GUN VIOLENCE TO SOCIETY

As discussed above, the greatest cause of gun-related injury or death is criminal activity perpetrated by those who will never pay a dollar’s worth of premiums into the grand GOLI premium pool. Thus, the societal costs of those forms of gun violence will not be offset by any claim proceeds. Further, since we are talking about insurance premiums, there will be no flow of funds from the insurance carriers’ pools to the public fisk to offset any costs.

PRIVATE VERSUS PUBLIC USAGE

Many people may not know this but there is no requirement for a vehicle to be registered nor insured if it will never be driven on a public road. In fact, an operator does not need a driver’s license if they will only operate the vehicle on private property. These fact may not seem very practical in suburban Connecticut but I know farmers who never register their farm tractors and trucks that will never drive on a public road. Thus, if supporters of GOLI are so fond of the car insurance precedent/analogy, why should a gun owner who does not carry his firearms in public be required to carry GOLI?

While I could go on with more, I am tired at this point and wonder how many readers got this far. For those of you still with me, I leave these questions:

How will a GOLI scheme reduce the impact of suicides, accidents and domestic shootings on society?

How will a GOLI scheme help prevent the next rampage massacre?

How will a GOLI scheme be implemented on the lawless who create the greatest societal costs?

How is a GOLI scheme not be an impediment with the right to bear arms?

How does a GOLI scheme not regressively impact the poorest among us who might also be those in the greatest need for self-defense firearms?

How will compliance be managed and financed?

What will be the penalties for non-compliance?

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Bill C February 07, 2013 at 05:48 AM
A couple of things. First I like to respond to articles so I get other responses in my Email. No thats out of the way. Your points are all true except farm machinery isn't registered even on the road. They call the orange triangle an Amish License Plate. I think GOLI is an infringement and you are spot on with with your poll tax comparison. They recently began calling having an ID to vote a poll tax. If an ID is a tax, then the tax on the gas to drive to and from the polls must be illegal.....Back to your regularly scheduled program......What has to be understood is most of these bills are just meant to bludgeon gun owners into submission and giving up their rights. They are schemes to work around that pesky Constitution thing. They want to go as far as the Constitution will allow. What would really bite them in the but, is if the NRA were to make the insurance available to members, profiting from the sale of insurance and increasing their membership. They can count me in.
Jlo February 07, 2013 at 06:11 AM
Great article TP, I learned a lot from it. My question is has anyone considered how massive and expensive the management of this system would be? It would require an insurance analysis of every gun injury, death, and property damage case, this would probably be 50k plus per year. In addition insurance cos would fight tooth and nail and drag cases out for months and years at a time. The burden on our already overloaded court system would probably break its back. It would create a lot of new lawyers though. Oh and add the costs of this into every town and state budget because police and the Feds will need this as well, they will be getting sued for every perp they shoot and every bullet hole they put in a drug dealers living room wall. So now rather than spending money on catching criminals we can spend it on insurance policies.
Thomas Paine February 07, 2013 at 10:28 AM
Jlo - None of this has been thought through by anyone advocating it. I have read OVER 30 articles calling for GOLI and no more than two actually discussed the complications of structure, pricing, implementation, compliance and enforcement. And those two had to concede that it was at best a "partial solution". But given their discussions, the only problem that it would partially solve was dissuading law-abiding owners from owning "too many" firearms. Seriously, for all the discussion of "negative externalities" and all the other fancy jargon, not one actually came up with an idea of pricing based on any sort of actuarial concepts. One, who was in favor but had to admit that it was a long shot, went as far as to suggest the ANNUAL PREMIUM per barrel would have to be equivalent to the cost of most common firearms (~$1,000) in order to cover the administrative and insurance costs as well as to act as a DISSINCENTIVE to owning firearms. Let's hope that our elected leaders show some wisdom on this.
Thomas Paine February 07, 2013 at 10:30 AM
Bill - One other thing an insurance scheme would try to do is create a registry of insured firearms. While mandatory registration does not seem popular enough to pass on its own merits (even those discussing it can read about past failed registration scheme) they could create a backdoor registration through insurance rolls.
Charlie February 07, 2013 at 12:28 PM
Excellent analysis. I'd add to the example of unconstitutional taxes the number of newspaper taxes that were struck down under the 1st amendment, plus taxes or penalties that target a viewpoint or exercise of a constitutional right with a pretextual rationale that it benefits society at large.
Cliff Cuming February 07, 2013 at 12:40 PM
Anything that drives up the cost of gun ownership will have two fundamentally inappropriate consequences. Many owners will not register their handguns to avoid taxes, fees and other costs. This increases the pool of illegal weapons and creates a more robust underground gun trade. Higher costs will also weigh more heavily on the poor potentially denying them the opportunity to defend themselves and their families. Presumably, this will affect those living in poor urban areas the most, where many crimes occur. Interestingly, affluent towns like Wilton have a low gun ownership rate (roughly 3%) whereas urban areas have much higher rates (9-12%). Increasing taxes on on ammunition (some ill considered suggestions are north of 50%) will inevitably discourage gun owners to use practice ranges thus resulting in less trained gun owners. As owners know, proper gun training is essential for safety. Better to focus on mental health issues. Has anyone heard the autopsy results on Lanza? Was he on illegal drugs or was he not taking his prescribed meds? Either case could have caused his mind to snap.
Thomas Paine February 07, 2013 at 01:21 PM
Adam - The issue of regressivity seems to escape those calling for such plans. As I have said, these are half-baked notions that can not stand up to rational scrutiny, never mind a proper cost-benefit analysis. But what boggles the mind is that those calling for such things are also the type who would argue that requiring official ID to vote disenfranchises voters, especially the poor and minorities. Yet, this ridiculous GOLI scheme would do the same thing making it prohibitively expensive for the law-abiding but relatively poor resident of New Haven, Hartford, Bridgeport, etc. from owning a properly registered self-defense firearm. If the African-American minister of the inner cities have been upset that the majority of the talk about gun control might only impact the suburbs, what will they say about this? Sadly, as you point out, a GOLI scheme will likly have the lowest compliance rates in the poorer neighborhoods putting those law-abiding residents who can not afford such insurance in a position of violating the law. Then I wonder whether such a law can be attacked on the grounds that it discriminates against the poor and less fortunate. Thank you for your comments.
Jlo February 07, 2013 at 02:20 PM
TP- I think that in practice what would happen is that most people would just insure their carry piece or the gun they kept in the bedside drawer so that they would be covered in the event of a deadly force encounter. The range guns/hunting stuff locked in the safe or sitting unloaded in the back of a closet would just be kept hush hush.
Jlo February 07, 2013 at 02:29 PM
re Lanza- nothing yet Adam. I've seen all kinds of "rumor" reports, some claiming that he went to Newtown High first but left and went to Sandy Hook when he saw a resource officer in the parking lot. Another claimed he posted his intentions online, though I think that may be false. The NHS one sounds credible since he attended NHS and would have actually passed it on the way from his house to Sandy Hook. I also read that the AR was fired 79 times before it stovepiped and he did not clear the action, it was non functional when the cops found it. No word on how many mags they found but they have stated he changed some only halfway through so I'm guessing he reloaded at least 5 times which really call into question how low cap mags would have made this any less deadly. I hope they get a full report together soon, there certainly should not be any legislation passed until the final report has been issued.
Thomas Paine February 07, 2013 at 03:02 PM
Jlo - That was the entire point of my "Open Letter" post - why the hurry? Why use e-cert to push something through before the end of this month when the Gov's task force is not scheduled to report out until after that? Are the controlling Dems concerned that the facts of the Lanza saga will suggest that the proposals at hand would not have made a difference? That his "Call of Duty" reload habit self-limited his mags to 15 rounds, indistinguishable from 10 rounds? You get the point, railroading this through is not a mistake, it is a strategy being perpetrated on all the citizens of CT by a few zealots in Hartford (Senator Looney, that means you!). As I have said before, I have plenty of disposable income and in the coming election cycles, I will direct it to whomever is running against those who are supporting this gun control adventure. This includes nominal Republicans who might face primary challenges from more sober folks. http://wilton.patch.com/blog_posts/an-open-letter-to-all-elected-officials-in-hartford
Charlie February 11, 2013 at 12:13 PM
A good summary of the consitutional issues facing the current proposals, along the lines of what I've been saying all around - the constitutional tests are not easy to satisfy: http://online.wsj.com/article/SB10001424127887323951904578290460073953432.html?mod=ITP_opinion_0 Of course, the response is usually to cite to Scalia's language in Heller about the government's ability to regulate "unusually dangerous" weapons. Whatever the merits of relying on this language, I have yet to see cogent arguments that a semiautomatic rifle is "unusually dangerous" compared to every other semiautomatic weapon.

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