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Major Misfire

Misconceptions drive gun liability bills in seven states and on federal level

It is not surprising in the aftermath of the horrific Connecticut school shootings to see lawmakers at both the state and federal levels trying to identify new ways to curb gun-related violence. One of the more novel, if misguided, approaches has been to propose mandatory liability insurance for gun owners.

By the end of March, legislators in Congress and at least seven states—Massachusetts, California, Connecticut, New York, Pennsylvania, Maryland, and Illinois—had filed legislation to require that gun owners purchase liability insurance.

It is apparent from public statements of proponents that the objective of these bills is to somehow reduce acts of violence involving guns. For instance, a Massachusetts state representative who attracted nationwide publicity after he filed legislation containing a gun insurance mandate was quoted by the New York Times as saying, “I believe that if we get the private sector and insurance companies involved in gun safety, we can help prevent a number of gun tragedies every year.”

Proponents of the bills suggest that bringing insurance into the picture will provide market-based incentives to affect the behavior of gun owners in a favorable way. They have suggested that the cost of insurance could affect gun-buying decisions, including what type of gun to purchase and insurer-promoted safety measures such as trigger locks and proper storage. An underlying theme runs through the comments of several proponents suggesting that the insurance mechanism can be harnessed in some way to reduce gun violence, similar to how the insurance industry has promoted safe use of automobiles.

Despite the rapidly growing popularity of the idea, these bills would not be effective in achieving their objectives. Their proponents harbor significant misconceptions regarding insurance and how a mandate would or would not affect gun-related violence.

One misconception is the notion that many gun owners do not already have liability insurance that would respond to situations involving guns. The liability coverage afforded by homeowners, renters and personal umbrella policies typically is designed to respond to a broad range of situations in which an insured has to pay damages to another party. Most liability insurance has at least the potential to respond to covered incidents involving guns.

In other words, just because most individuals do not purchase “gun liability insurance” per se does not mean that they don’t have liability insurance that covers gun-related liability; it’s just that it doesn’t cover only gun-related liability.

Another fundamental misconception is that insurance would provide coverage for most acts of violence. Liability insurance covers negligence; it does not cover intentional acts. Because acts of violence by their nature involve intentional conduct, as a general matter, no liability insurance that exists or would be developed in response to a coverage mandate would provide coverage for gun-related violence. (The qualifier “as a general matter” is meant to account for the fact that the duty to defend can require insurers to respond to provide a defense when both intentional and negligent conduct is alleged.)

Proponents of mandatory gun liability insurance have often equated gun insurance with auto insurance, pointing out that almost every state requires drivers to have insurance and suggesting that it makes sense to have a similar requirement for gun ownership.

But the equating of auto insurance and gun insurance does not work, at least in the way proponents seem to suggest. Auto insurance, like other liability lines of insurance, does not provide coverage for intentional acts. If you intentionally run someone over with your car, that incident will not be covered.

If these problems were not enough to undermine the potential effectiveness of a gun insurance mandate in reducing gun-related violence, one also has to consider the issue of compliance. Presumably the gun owners who ­complied with such a law would be responsible and law-abiding individuals who would be the least likely to commit acts of gun violence. Conversely, those most likely to commit acts of gun violence probably won’t comply with a statutory mandate.

So if these gun insurance mandates are based on misconceptions and fail to address gun violence, why they have been so popular this legislative session?

The likely best answer is that in politics, perception matters as much as policy. From the start, the issue has seemed to be more of a public relations phenomenon than an earnest policy debate. It kicked off in mid-January with reports that Rep. David Linsky, a state representative from Massachusetts, had filed a bill to mandate gun insurance. His bill contains a long list of gun control provisions in text running close to 15,000 words, while the gun insurance mandate is in a single provision of 130 words. Yet the insurance mandate was the only aspect of the bill that was broadly reported on by the media. And the coverage took off quickly, culminating in a Feb. 21 article in the New York Times.

Since then, media coverage of gun liability insurance and the filing of legislation has spread like weeds, and there appears to have been a copycat phenomenon where lawmakers in one state would be prompted to file a bill after seeing media reports of legislation in other states.

On March 21, Rep. Carolyn Maloney, D-N.Y., put the idea into play in the federal arena when she filed HR-1369, the Firearms Risk Protection Act, to require gun owners to purchase liability coverage and to show proof of that coverage when they purchase a firearm.

In declaring an insurance mandate “an idea whose time has come” in her official remarks, Rep. Maloney cited the fact that lawmakers in several states, including Massachusetts and Illinois, had introduced similar legislative proposals. This was interesting given that the Illinois proposal, which came in the form of an amendment to a broader gun control bill, had been overwhelmingly rejected by lawmakers in that state a day earlier.

As the fate of the Illinois proposal demonstrates, it is one thing to introduce a bill and entirely another thing to get it passed. In addition to that proposal being defeated, bills in Maryland and Connecticut have failed due to failure to meet procedural deadlines. As of early April, it did not appear as though any of the mandates would pass this year, but it would not be surprising to see them continue to be filed in the future, demonstrating how a misguided idea can take on a life of its own.

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