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Law on liability insurance eyed for gun owners

Idea resurfaces after Newtown killings

- The Washington Times - Tuesday, January 1, 2013

Hoping to get beyond the debate over new gun-control laws, a group of economists and legal scholars is floating another plan they say could cut down on spree shootings: require all gun owners to carry liability insurance, similar to what automobile owners must have.

The plan, which was floated in Illinois' legislature in 2009, draws the ire of gun-rights groups who say it infringes on Americans' Second Amendment rights and unfairly targets law-abiding gun owners. But backers say it offers a way to ferret out potentially dangerous or unstable criminals from the ranks of gun owners without having the federal government enact outright bans.

The horrific shooting at Sandy Hook Elementary School in Newtown, Conn. last month ignited a new national debate over gun law, but the liability insurance proposal may not have prevented that tragedy. Shooter Adam Lanza used firearms owned by his mother to kill her and then 26 children and administrators at the school before taking his own life.

"If you own a gun, you should expect some due diligence of all people who own guns," said Tricia Dunlap, a Richmond-based lawyer. "We can stop debating about whether you can own a gun, because of course you can. Do we ban assault weapons? No, it doesn't work. God, we've been having that debate for 20 years. Can we come at it from a fresh angle?"

Nelson Lund, a constitutional-law professor at the George Mason University School of Law, suggested the idea 25 years ago in an article published in the Alabama Law Review and made a similar free-market argument.

"If this were done, the private insurance market would quickly and efficiently make it prohibitively expensive for people with a record of irresponsible ownership of guns to possess them legally, but would not impose unreasonable burdens on those who have the self-discipline to exercise their liberty in a responsible fashion," Mr. Lund wrote.

But Stephen Halbrook, a research fellow at the free-market Independent Institute who has authored many books on the Second Amendment, called the gun-insurance idea "quacky" and likened it to individual journalists, in order to exercise the First Amendment's free-press guarantees, being required to purchase insurance for potential libel or defamation lawsuits.

"It's not feasible," he said. "Talk about third-party criminal acts — no insurance company is going to insure that the so-called assault-weapons ban has a better chance of passing, but it's obviously not inevitable."

The insurance market would have to be complex, and there are many questions still to be answered, said Etti Baranoff, an associate professor of insurance and finance at Virginia Commonwealth University. She said the proposal raised major questions about risk-management strategies and exactly when government entities are immune from such liability.

"There are a huge amount of liability policies — insurance companies want to be in the business," she said. "If [gun owners] went to a private insurance company and bought [a plan], what kind of coverage [is it]?"

Still, the idea has gained some traction among academics and free-market advocates in the wake of the Newtown killings. The liability proposal was actually introduced in Illinois legislation in 2009. That bill required anyone in the state who owned a firearm to carry at least $1,000,000 of liability insurance "covering any damages resulting from negligent or willful acts" involving its use while they own it.

The bill received strong opposition from gun-rights groups such as the National Rifle Association and the Gun Owners of America. Opponents said the measure would punish law-abiding gun owners and could make owning a gun prohibitively expensive — raising serious questions about infringing on citizens' Second Amendment rights.

Another controversial provision in the bill stipulated that gun owners could be held liable if their gun was lost or stolen and someone else subsequently used it while committing a crime.

In the face of pressure from groups such as the NRA, state Rep. Kenneth Dunkin, a Chicago Democrat and the bill's sponsor, eventually tabled the measure.

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