Why a Firearm Insurance Mandate Won’t Work

In response to the 2012 massacre at Sandy Hook Elementary School in Newtown, Conn., some legislatures have begun to consider new regulations requiring gun owners to purchase liability insurance, say Stephen Gilles, a professor of law at Quinnipiac University School of Law, and Nelson Lund, University Professor at George Mason School of Law.

Gilles and Lund explore some of the constitutional pitfalls with such requirements, but conclude that a carefully drafted statute would probably be upheld under current constitutional doctrine. The benefits to public safety would be modest, but such a regulation would be preferable to many politically popular gun control proposals that would be ineffective, unconstitutional, or both.

Mandatory liability insurance can be converted into a disguised tax.

– Instead of using regulation to ensure that individual gun owners bear more of the costs of injuries resulting from their own negligence, one could structure it to force law-abiding gun owners to bear the costs of firearms injuries inflicted by criminals who are outside the mandatory insurance risk pool.

– This version of the mandate would give people injured by firearms (or their survivors, in wrongful death cases) a statutory right to recover from a fund created from premiums paid by gun owners who complied with the insurance requirements.

– In substance, this would be a tax on lawfully owned firearms earmarked for payment to the victims of illegal firearm violence.

Statutes requiring gun owners to carry liability insurance could be written in a way that would not violate the Second Amendment, but there are many constitutional pitfalls in such an undertaking. Such regulations could easily be used to impose disguised taxes, penalties and prohibitions on gun ownership, to discriminate in favor of some law-abiding gun owners at the expense of others, or to promote overcharging by insurers supervised by state regulators eager to score political points with gun control advocates.

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