Gun Control Debate 2013: Liability Insurance is Gun Control in Disguise

Now that Sen. Dianne Feinstein's (D-N.Y.) Scary Looking Gun Ban has failed to garner the necessary support in the Senate, we should fully expect other tactics to take the front stage in the concerted effort to water down the Second Amendment.

Several states have introduced legislation that would establish a requirement for gun owners to purchase a special liability insurance policy that would, in theory, provide coverage not only against acts they might commit with a gun, but against acts committed by someone who might unlawfully come in to possession of their gun and do harm.  

The longer I look at the idea the more problems I see.

On its face, it almost sounds kind of reasonable. If a law could make criminals and violence-prone people less likely to own guns, that would be a good thing, wouldn't it? But the only thing such an insurance requirement could be guaranteed to accomplish is increasing the cost of gun ownership for law-abiding citizens and providing encouragement for criminals who commit unwarranted violence to obtain and own guns in secret, so they could take advantage of the resulting increase in unarmed potential victims.

Such proposals significantly restrict the fundamental rights protected by the Second Amendment by creating a new subclass of people unable to exercise their constitutional rights because of the costs involved.

The 24th Amendment addresses the constitutionality of charging a fee or tax on the exercise of ones rights in the context of the poll tax:

"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."

Any gun ownership liability policy is little more than a tax upon the exercise of one's Second Amendment rights, except in this case, it would constitute a tax which virtually eliminates the peoples' right to redress their grievances on a constitutional level.

Imagine what would happen to this web site and most other news and opinion venues if a law were passed that all media outlets had to carry millions in liability insurance against the possibility of libelous acts committed by editors and contributors. What would happen if PolicyMic had to confirm your libel insurance policy before they could grant you an account? Free speech as we have come to know it would end, and it would end at the hands of insurance companies as they subjectively decided their coverage limitations.

Gun owner liability statutes attempt to hold law-abiding citizens, which constitute over 99% of gun owners, responsible for the behavior of criminals. Such laws operate in part on the presumption that any criminal who plans to use a gun in a crime or go out and shoot people is going to be deterred in some way by failing to meet a requirement to buy an expensive gun-owner policy. But most drivers don't even stop driving when their auto insurance expires. Proponents can't offer any data to show that such a restriction on guns would work at all, much less be significantly effective. This type of law is little more than a thinly-disguised effort to achieve the gun control measures defeated by the political process.

Another reason that gun owner liability insurance isn't a viable plan is because insurance companies don't pay for the intentional acts of policy holders. They could further deny liability on unintentional acts based upon the comparative negligence doctrine.

Gun owner liability insurance would take gun control out of the hands of voters in the public sector and place it into boardrooms in the private sector. The private sector would then begin to determine the conditions under which a person may exercise their Second Amendment Rights.

An insurance company would be permitted to set rates for coverage which might, in and of themselves, simply price people below the poverty line out of the ability to defend themselves. As justification for their rates, insurance companies could decide to use bogus and or misrepresented statistics from anti-gun groups. They could easily mandate the purchase of a $2000 safe to store a $200 handgun or set other unreasonable conditions.

Premiums could be increased if one keeps a loaded gun in the home for self-defense, or coverage could simply be denied.

Every time some techno-geek devises some gadget like coded buttons, RFID rings, or GPS trackers, insurance could mandate that firearms be updated or destroyed.

Insurance companies could require sample bullets and ballistic information which they could then permit the government to access, establishing de facto gun registration.

Insurance companies would dictate to the firearms industry what could be sold to their customers by simply regulating which types of firearms their policies would cover.

Even if the government set up an alternative insurance policy for gun owners that the insurance company declined to cover, this alternative insurance would again be de facto gun registration because of the information required for coverage.

Insurance companies have a history of cancelling policies or denying coverage even when drivers were not at fault in collisions. This leaves open the possibility that successfully using a firearm to defend your home could leave you uninsured and defenseless. What happens if your insurance company cancels your policy or policy expires? Would the insurance companies notify law enforcement, who would show up at 4:00 a.m. with a SWAT team and a warrant to seize your guns?

Insurance companies would also be subject to backroom deals allowing anti-gun politicians to achieve more restrictive gun control in exchange for other legislation favorable to the insurance companies.

These proposed statutes as an attempt to do an end-run around Second Amendment protections.They should be defeated wherever they are proposed. 

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Ed Earl Upshaw

consultant

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