Gun-liability insurance

If you’re going to do it – probably not a great idea – put the liability on the manufacturer or importer, not the buyer.

I’m not a fan of mandatory liability insurance for gun owners; Megan McArdle picks some good holes in the proposal, without even mentioning the big problem about how to attribute liability when the firearm used in an assault or homicide is never recovered by law enforcement. But even a flawed concept ought to be considered in its most nearly plausible form.

For gun-liability insurance, it seems to me the most plausible form would be strict liability on the manufacturer (or importer) for any damage to third parties done with the gun, and a requirement that the liable party either carry insurance or post a bond (to avoid the “judgement-proofness” problem.) Damage from unrecovered weapons could be allocated on the market-share principle.

That system would give the gun industry a strong incentive to be careful about not selling to people who might misuse the weapon or re-transfer it to someone who would. In effect, such a law would force the gun industry to act as a regulatory authority.

Now go back to Megan’s piece to read about all the issues that would raise. And then think about how hard it would be for anyone living in a poor African-American neighborhood to buy a gun.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

54 thoughts on “Gun-liability insurance”

  1. Gun manufacturers, accept a few states that have same special exemptions for the industry, are already liable under negligence and are big enough not to be judgment proof. Some states a judgment can be obtained for a percentage of the company’s comparative fault.

  2. Also why are you not a fan? An auto insurance type system makes great sense to me. It operates a bit like a Pigouvian tax: the externalities are added to the cost of ownership.

    It has a nice regressive feel to it too, and while our economic problems are due to the rich having too much and the poor too little, our gun problem, notwithstanding the CT incident, is mostly about poor and irresponsible people with guns.

    In other words, a gun tax will lead to less money for rich gun owners, and less gun ownership amount the poor. Also, young men will probably pay the highest rate like with auto ins., and they are the people who least need guns. Where do I sign up?

  3. This might have prevented the CT massacre. Could Lanza with his metal issues been able to get a company to insure him? If not, could Mrs. Lanza infected him with her gun fetish by taking him to the range? She might have instead had to get a policy rider saying her young unmarried unemployed son would nt be allowed to touch the gun, just like parents often sign by limiting their sons use of their car to obtain lower insurance rates. They might also require things like trigger locks and safes to limit liability.

    1. But if the insurer prohibits a resident from using the guns won’t that just mean the insurer ducks out of liability due to the terms of the policy being broken. With auto liability insurance the insurer covers the car not the driver. No doubt if an unauthorised individual commits murder with a gun the policy holder will have a problem but that eventuality isn’t likely to dissuade a crazy son bent on mayhem.
      I like the idea of manufacturers, sellers and buyers all sharing liability and letting the insurance companies get to be the enforcers. If no insurer wants to cover your ownership of a gun you can’t buy one. And when the cops take a gun from a punk the whole consortium (manuf., sellers, owners and insurers) get a bill from the police for expenses incurred. Start keeping some of the externalized costs isolated to the groups who benefiet. Why should we all pay more taxes for other peoples’ guns?

  4. That’s like imposing liability upon all commercial printers for any defamation committed by the newspapers, magazines, etc. who contract their services. Such a move would not survive 5 minutes of scrutiny under the 1st Amendment (never mind additional due process problems), for the obvious reason that it would either shut down the printing business or make the the cost of printing prohibitively high for those who wish to exercise the 1st Amendment right to free speech. Analogously, if a state-imposed restriction shuts down gun manufacturing or makes otherwise moderately priced guns prohibitively expensive, the courts would deem it a violation of the 2nd Amendment right to keep & bear arms.

    Years after Heller & McDonald, many intelligent individuals have failed to absorb that right to keep & bear arms is an individual right on a par with the 1st Amendment rights to the freedom of speech & the free exercise of religion, the 4th Amendment right against unreasonable searches & seizures, the 5th Amendment right against self-incrimination, etc. Because you don’t want to absorb it. Because it hurts your delicate feelings to absorb it.

    1. You say that the “right to keep & bear arms is an individual right on a par with the 1st Amendment rights to the freedom of speech”, then proceed to assert that “many intelligent individuals” have “failed to absorb” that fact.

      Well, I can’t speak for the “many intelligent individuals” who you perceive as being too dim-witted to comprehend the present situation. So speaking only for myself, I have certainly “absorbed” the fact that firearm possession is indeed defined as a given right at this moment. However, it is a fact that I would like to change – since all human rights are, after all, man-made and malleable – which is precisely why I advocate repealing the 2nd Amendment. Freedom of speech should obviously be be a formal right, along with the right to believe what you wish, to not be searched or seized without reasonable cause and to not be coerced into incriminating yourself. But the freedom to own devices designed primarily to kill human beings from a distance should not even remotely rise to the level of a guaranteed right.

      Once the 2nd Amendment is repealed, we can discuss whether the state should have a monopoly on such tools of killing or whether some civilians should be licensed to own firearms. But no sensible regulation can take place while the 2nd Amendment is in effect (and is interpreted by a corrupt majority on the Supreme Court, but that’s sliding into another topic). It should be repealed.

      1. Its nice to have dreams, I suppose, and a man’s reach should exceed his grasp, they say. But, shouldn’t you start small, with repealing the 2nd amendment analog in one of the state constitutions? As I’ve remarked before, anti-gunners announcing their desire to repeal the 2nd amendment are like people living in 1 floor flats because they can’t handle stairs planning their assent of Everest.

        1. I’m not holding my breath, Brett, but someone has to make the case occasionally. Pro-gunners tend to assert their particular right as at least the equal of other Constitutional rights, like the right to freedom of speech, or freedom of belief – but it’s simply not in the same league, in my opinion.

          BTW, I sort of like your “anti-gunner” bit, despite preferring not to be defined in opposition. It’s certainly snappier than “pro-not-making-it-real-easy-to-kill-people”. Reminds me of the good old days of anti-anti-communism.

          1. “but it’s simply not in the same league, in my opinion.”

            You don’t want it to be, but there’s no textual basis for some parts of the Constitution being less enforced than others. Every single word is on the same league: “Highest law of the land.”

            Sure, make the case. I like it when gun controllers make the case for abolishing the right to keep and bear arms. It’s so much more honest than the usual strategy of claiming to support the 2nd amendment, while privately thinking, “So long as it’s interpreted to be meaningless.”

            But that strategy is adopted for a reason: The right to keep and bear arms is popular. Which is why none of the state “2nd” amendments have been repealed, even though state constitutions are relatively easy to amend. Which is why CCW reform and “stand your ground” laws have been spreading, not contracting. Which is why the NRA has millions of members, and more millions claim to be members even when they’re not paying dues. Which is why the NRA is so popular.

            The case got made, the case got rejected. All this “Need to have a conversation on guns” business is something of a joke. We had one. You lost it.

            It hurts to realize that your deeply held convictions have been rejected, that you made your case, and it didn’t persuade, that your views are fringe views. I know, some of MY views are fringe views, and it stings. But it doesn’t help anything to pretend that what you find “obviously” true hasn’t been heard and rejected.

            Now, this doesn’t have to last forever, but you’re not going to change it while you’re pretending that you’re already the dominant faction.

    2. If the cost of insurance is high, presumably it’s because the risks are substantial. If hardly anyone with a gun causes damage, then the premiums should not be terribly high – and thus not interpretable as prohibitive within the meaning of 2nd Amendment case law.

    3. Brian, guns are not speech, and therefore the exceptions to the Second Amendment will be different than the First. For instance, you can wear a coat that says F the draft in a court house, but you can’t carry a gun.

      Drawing analogies to the First Amendment is a good way to expose yourself as an unserious and unthoughtful commentator on the RKBA.

    4. Here’s a thought (or at least half a thought): Can we say that liability insurance can be forgiven to individuals (and their suppliers) participating in a well regulated militia and reserve the mandatory liability protection for folks of a less community minded bent?

      Of course these days the well regulated militia is the state national guard so the 2nd amendment is pretty much like an apendix with it’s self defined opening phrase showing it to have outlived it’s stated function. Many gun owners argue that criminals’ fear of all those stalwart packers of heat provide a valuable thin whatever color line between the crazies and we poor schlubs too timid to keep a 44 tucked in our drawers but I believe that the good guys/bad guys arms race leads to the oposite result.

      Guns are not toys. The ability to own guns with scarcely a care gives us a lot of careless gun owners. If Mrs Lanza had been required to keep her guns under lock in order to hold an insurance policy a lot of people might be alive today. If these kinds or resposibilities are off putting to some would-be gun owners then it seems that we would be weeding out just the sort of bad apples who should not be trusted with a death dealing instrument. Guns are not toys.

      1. Wouldn’t work: The point of the right being of “the people” and not “the militia” was exactly so that it couldn’t be defeated by just turning the militia into a small standing army, which is all the National Guard is.

        Again I say: It’s a civil liberty, the judiciary are not morons, they’re as capable of identifying a covert attempt to attack a civil liberty as you are of devising one. You won’t be permitted to achieve circuitously what is unconstitutional to achieve directly.

        1. It is not that simple. The right is individual, but it is not libertarian. The militia would normally not be fully organized, but the govermnent’s power to organize it and discipline it is plenary.

          I doubt the framers would have loved the idea of a national guard, but my reading of the Constitution is that they clearly empowered the government to require that everyone serve in it.

          1. Yes, yes they did. What they’re not empowered to do is have some people serve in it, and use that as a basis to infringe the rights of the people who don’t. That’s precisely the sort of thing the 2nd amendment was adopted to prohibit. Just as the power to run a school system, (Present in many state constitutions.) is not the same as the power to ban books, or direct that certain topics not be studied.

            But, absolutely, the government is constitutionally entitled to order everyone to go out and buy a gun, and ammo, and show up on a regular basis for training. It isn’t libertarian, but then, having a government AT ALL isn’t particularly libertarian. Libertarian is, fundamentally, a species of anarchism. It simply aims at achieving that goal incrementally.

            But if the government ever re-institutes a militia system, (Which the National Guard is not.) I suspect the last people to be happy about it will be gun controllers.

    5. Your 1st & 2nd Amendment arguments are cover quite well here. It seems a bit of education is in order for you to comprehend the full issue. The government does not allow you to own dynamite because of its “inherent harm” same as too many guns will create higher risks and mechanism for reducing that risk will be along the same lines. Your argument of basic of comparing the 1st and 2nd amendments are covered are compared and based on “interest” they are not the same right.

  5. “And then think about how hard it would be for anyone living in a poor African-American neighborhood to buy a gun.”

    Would this be a bad thing overall?

    1. Given the history of gun control, that’s doubtless more a feature than a bug. The gun control movement started out as an effort to disarm freed blacks after the Civil war, and it wasn’t until the mid-20th century that they started going after the general population, instead of concentrating on uppity minorities.

      Proposals like this aren’t intended to do anything about crime. They’re intended to disarm people.

      Here’s some interesting data from gun control organizations.

      For the reasons Brian raises, the proposal is a non-starter. For God’s sake, people, stop pretending you can treat this civil liberty like a mere privilege you can regulate out of existence by the back door! You lost that fight, we’re under civil liberties rules now, and they do kind of limit the mischief you can engage in, purposely.

      1. “Proposals like this aren’t intended to do anything about crime. They’re intended to disarm people.”

        Saith the troll who frequently posts an auto text snippet about who those mean liberals keep inventing motives and attributing them to their opponents.

      2. Sorry, I was thinking more of Mark’s other posts about easing the supply of potentially harmful products like cannabis and alcohol.

      3. Didnt see a citation for the home invasion stat there Brett. I wonder why? As Alex Seitz Wald shows in the most recent issue of Salon the theories originator, Gary Kleck, has been savaged by the mainstream epidemiology community. Anyway if you want one gun in the home fine. You can have that one gun, and that’s it, and you can’t take it outside the house.

  6. A commenter at the Althouse blog (pointed to this by Instapundit) said of the move to ban high capacity clips:

    “”I just don’t get the thinking process behind banning high capacity clips and magazines. It just doesn’t accomplish much.”
    The gambit is to get a victory, a win, and push the face of the losers into shit if you can, in order to gain momentum for the next victory, so that you can again humiliate and degrade any winger gun owners and intimidate any good folks who happen to have hunted in the past.
    You start the process in motion with a win, and you aren’t sure which win will be the one win to start it, but you keep trying for it.
    Always and forever.”

    It’s, I think, helpful to look at several of the skirmishes now going on in our society – abortion restriction, gun control, increase taxes on the wealthy. maintain/cut back on previously negotiated provisions with unions – in this light. The generals on each side think momentum is crucial, and they can get it by a win, any win. Obama wants to take back the Bush tax cuts on the rich, and is willing to risk going over the cliff for it – for funding for the government which is measured in days, and not very many of them. The Reeps want to keep the tax cuts, though the amount is not very large and All The Big Deal Economists think the damage done by not getting to a deal will dwarf the size of this issue. Makes it very hard to get to an incremental deal in lots of areas. That, and the fact that the Dem and Reep primary electorates are so far out of line with the country as a whole.

    1. As I’ve said before, reading the minds of opponents to find out their real motivations is a lazy exercise, and a pretty easy way to fall into bad faith. I can’t speak for the leaders, but pro-life people I know support incremental movement in abortion laws because (a) they can’t get the whole thing and (b) each increment, at the margin, saves (as they view it) lives that would otherwise be irretrievably lost. People I know who think regulating high capacity clips feel the same way: if inconveniencing some hobbyists saves some lives, why the hell wouldn’t you do it? Because it doesn’t save every life? It takes a pretty ugly sensibility to say that willingness to accept small gains by either pro-life or anti-gun people shows that they aren’t really motivated by the principles they espouse, but are just taking sides in a cultural war. Or, I don’t know, maybe it’s just projection.

      I’m not saying that there are not people who believe in momentum theories, although with human behavior such theories are more often transparently false: the much more common situation is that after you get people already predisposed to agree with you, or leaning, persuading each additional marginal person of some proposition is harder than the last, not easier.

  7. Mark Kleiman: Giving his blog readers the middle finger for the uncomplimentary things they said about McCardle.

    I don’t have to go to the linked article to know it consists of three elements. 1. A broad general proposition that is imagined in the way that McCardle needs it to be in order to make her argument. 2. Detailed criticisms of #1 that seem reasonable, not fact-checked, and that do not countenance the widely known or logical tweaks to her imagined proposal that would address the criticism. 3. A conclusion that is in line with her Liberterianism/Republican religion that gun control is wrong/unworkable/silly.

    Since I have not read McCardle, my criticism is as fact-checked as her writing, but it is better researched because I have read her before and almost EVERYTHING she writes fits that model.

    1. McArdle’s post is pretty detailed & cogent (but a little repetitive.) She’s am economist, and she understands various insurance markets, and it shows. I’d advise that the next time you want to critique a work without reading it, don’t be so honest about not reading it. If you lied you might have come out looking better.

  8. Meanwhile the atrocity in CT is already prompting productive responses:

    More than 150 Utah teachers, school workers go to gun class

    More than 150 Utah teachers and school workers took time off from their winter breaks Thursday to attend a free class on how to carry concealed weapons and respond to mass violence such as the recent shooting in a Connecticut elementary school.

    It’s a course that’s been offered to Utah educators for more than a decade, but Thursday it attracted about 10 times as many people as usual, said Clark Aposhian, an instructor with Fairwarning Training and a chairman of the Utah Shooting Sports Council, which hosted the class with OPSGEAR. Aposhian said organizers had to turn away about 40 or 50 people for lack of space.


    Scores of school workers want gun training

    More than 450 teachers and other school employees from across Ohio have applied for 24 spots in a free firearms-training program being offered by the Buckeye Firearms Association.

    “We’re pleasantly surprised, but it’s not shocking,” Ken Hanson, legal chairman for the association, said yesterday of the response since the group began taking applications on its website 10 days ago. “The demand has been there for quite some time.”

    The issue of arming school employees to protect students has been “on the radar” of school boards in Ohio for several years, he said, but the organization decided to launch its training program after the Dec. 14 shootings at Sandy Hook Elementary School in Newtown, Conn., where a gunman killed 20 children and six adults.

    “That was the breaking point,” he said. “We decided it’s time to quit talking about it and move forward.”

    1. I look forward to the descriptions of gun battles in the schools, including the ones between the kids who get their hands on the teachers’ guns. What a society!

      1. Gun battles are, I think, preferable to systematic slaughter. But the research suggests they’re unlikely, most of the time mass killers faced with somebody holding a gun commit suicide.

        Understandable, really: Their goal is to kill a lot of people, and then die. They get in a gun fight, they risk simply being wounded, and having to go through that whole trial and imprisonment thing the suicide is intended to prevent.

        BTW, both the President and that clown Gregory have their kids at Sidwell Friends, where there are armed guards. How often does Sidwell have these gun fights you posit taking place? Vivid imagination you’ve got there, but imagining things doesn’t trump actual evidence.

        1. The “armed guards” claim about Sidwell Friends is a bit exaggerated. With 1100 students in three schools (separate campuses, lower, middle, upper), there is one security guard per campus per shift, although that guard does carry a concealed weapon, according to Snopes’ examination of the Right Blogosphere’s assertion that Sidwell has “11 armed guards, in addition to the Secret Service detail.”

      2. I look forward to the descriptions of gun battles in the schools, including the ones between the kids who get their hands on the teachers’ guns. What a society!

        Me too! What a manly, tough, rock-ribbed society that would be! My, my how invigorating and paternalistic! Ohhhhh, I’m getting excited just thinking about what a fully militarized society full of gun fetishizers would look like. The codpiece as fashion accessory returneth!!!!!!1

      3. When I was in grade school, we had gun battles all the time. Even though we were only using cap pistols, they looked a lot like real guns, make a lot of noise and sometimes caught on fire.

        1. Our local gang, all with 4 year olds, got our kids cap pistols for Christmas. Not as realistic as the one I had as a kid, (Which didn’t have the silly orange tip.) but it beats the gun my son made out of toilet paper tubes and masking tape.

          Think they’ve reformulated the powder in the caps, though; They’re not very reliable in their ignition, and don’t smell nearly so much like gun powder.

          We got together last night to watch The Hobbit, while our wives managed the playdate. Mass gunfire ensued. Brings back memories.

          1. BTW, just to fend off the accusations of misogyny, next week us guys manage the play date, while the gals go see “Les Miserables”

  9. The problem with Mark’s proposal is that it gives sellers incentives to take care, but not owners. Guns are durables with an active secondary market. Sellers cannot control resale or theft or other things. Owner liability is more rational, because liability policies create incentives. Liability insurance rates might be a lot cheaper if the insured parties had gun safes, and were certified in the use of guns by a reliable private authority. (The NRA offers excellent gun training, but I’m not sure that it would act responsibly in this context.)

    Indeed, I think that owner incentives would be the main point to liability insurance. You are trying to ensure that ordinary gun-owning citizens take some care to 1.) learn how to shoot straight; 2.) know what their law of self-defense actually says; 3.) keep their guns away from children or burglars; and maybe 4.) get the goddamn gun out of the house if they have some matrimonial trouble. (Many police departments do not let their cops carry off-duty if they’re in the middle of a divorce.) If owners can’t satisfy an insurer of this, they will have to pay extra for the privilege of gun ownership.

    Some of McArdle’s arguments were fairly weak. Her asbestos argument, for instance, required that she didn’t know the difference between “claims made” and “claims accrued” insurance. I’m not sure that her stats on accidental shootings refer to accidental discharges (relatively rare), or unauthorized discharges. I do agree with her that insurance is not a panacea.

  10. Instead of requiring liability insurance, maybe we could treat guns like cigarettes, and tax them heavily in order to fund the wide range of actual costs of emergency response required when they’re used? Very often, victims of gun violence are uninsured, so there are real costs associated with guns that are paid by the rest of us, and why should all of us pay higher medical insurance premiums in order to fund the activities of gun-users against insured victims?

    The rationale behind cigarette taxes is to pay for the harm they cause. It should be the same with guns. No one knows exactly who will be harmed by cigarettes; likewise for guns. Make the users pay the costs, and taxes are the most effective way to do this. If high gun taxes result in fewer gun purchases, that would merely be a collateral benefit.


    In a capitalist country all statements about rights contain an implicit “as much as you can afford to”. The right to free speech and free exercise of religion does not come with a right to affordable printing presses or telecommunications facilities or church buildings. The right to travel has been deemed fundamental, but not the right to car ownership.

    The gun lobby is normally cool with this because it creates a corporate controlled press that is entirely amoral and seeks only profit. This creates a nice synergy for the gun lobby, which needs a lot of megaphones to constantly reinforce an insane message, which is that there is this one right, to weaponry, which is violated if you subject that right to the same financial constraints that all other civil liberties are subject to.

    1. Nobody is saying that this civil liberty isn’t subject to the same financial constraints other civil liberties are subject to; Only that it can’t be subjected to artificially enhanced costs.

      1. The proposal I make is that gun makers, dealers, importers, and owners be liable only for the actual costs, including payments to the crime victims compensation funds for gun crimes, including harms caused by gun owners failing to secure the weapons they own. Right now the gun lobby forces all Americans to pay those costs, instead of just those who want to exercise the right to bear arms. Firearm insurance internalized the costs to the industry. There’s nothing artificial about it.

        1. Right now the gun lobby forces all Americans to pay those costs, instead of just those who want to exercise the right to bear arms. Firearm insurance internalized the costs to the industry.

          No two ways about it, there are two sides to every story: society benefits from gun nuttery.

          I was raised by a single mom who for many years was an emergency room nurse in Detroit. I wouldn’t be where I am today if we didn’t have a steady supply of GSWs to rely upon.

  12. P.s. if you want to exercise your right to bear arms and not have to pay for doing so, there’s a well-funded agency that will provide you with the weapons, ammo, and all the training you need, along with generous pay, benefits, travel, and 30 days vacation a year.

  13. At a minimum I think it makes sense to require coverage for accidental shootings. McArdle dismisses this as small potatoes, but that’s no argument against it. Many people already have this coverage, I guess. My homeowners policy contains no exclusion for firearms-related accidents, for example. But I don’t think everyone does, and requiring gun owners to be responsible for accidents hardly seems unreasonable.

  14. @guninsurblog Effective gun insurance that will protect everyone and be a minimal burden on gun owners is possible. The detailed article quoted above is discussed at length at It will require designing a system with care but the insurance industry has done that many times.

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