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Journal of Tort Law

Founded by Coleman, Jules

Editor-in-Chief: Robinette, Christopher

Editorial Board: Geistfeld, Mark A / Goldberg, John / Perry, Ronen / Sharkey, Catherine M. / Witt, John / Zipursky, Benjamin

CiteScore 2018: 0.50

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Source Normalized Impact per Paper (SNIP) 2018: 2.042

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Any Weapon to Hand? An Essay on Gun Regulation and the Limits of Insurance

Adam F. Scales
  • Corresponding author
  • Center for Risk and Responsibility, Rutgers University Camden School of Law, E323 217 N 5th Street, Camden, New Jersey 08102-1203, USA
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Published Online: 2017-08-29 | DOI: https://doi.org/10.1515/jtl-2017-0013


There has lately been much interest in the role the liability system might play in reducing firearm deaths. In the past few years, stories of gun violence have entered the national conversation with depressing regularity. Just as regularly, there quickly follow calls for more gun control - now couched in terms of “gun safety”. A new twist on this theme appropriates the language of “responsibility” that insurance companies have traded in for over a century. At the state and federal level, legislatures have introduced bills that would require gun owners to carry liability insurance that would protect third parties from injuries associated with the use of the policyholder’s firearm. The stated aim is to induce a measure of financial responsibility congruent with the risks of firearm ownership. Those risks can be imagined in various ways, and proponents of gun insurance have offered varied rationales for a gun insurance mandate. On its most basic level, gun insurance could provide a source of compensation for victims of gun violence, or their families. At 30,000 or so fatalities a year, the economic toll of gun violence is easily quantified in the billions. Insurance companies, motivated to arm themselves with the data that governments often cannot obtain, will uncover and enforce risk reduction strategies that will mitigate gun violence. These strategies, it is commonly assumed, will turn out to look a lot like the “common-sense” gun safety regulations so regrettably stymied by timid legislators. The costs of this risk reduction program will of course be borne by gun owners themselves, in the form of insurance premia. One can discern a couple different sorts of mechanisms by which this might work. First, insurance might separate “good” gun owners from “bad” gun owners, rewarding the former with discounts or credits for socially cooperative behavior. Properly finetuned, this might place the entire burden of insurance-related gun violence on the shoulders of “bad” gun owners - those who leave loaded handguns in between the cushions of their sofas, easily accessed by small children. Or - of course - those who actually commit gun crimes. On another view, there might not really be any good or bad gun owners. Like pollution, gun violence is an inevitable by-product of gun ownership. While there might be room for insurance to make things safer, there is no moral reason to distinguish among gun owners, who all contribute to the availability of guns in marketplaces legal and otherwise. On this view, a gun anywhere is a threat public safety everywhere; liability insurance premia act as a kind of Pigouvian tax, internalizing at last the costs of gun violence into the long-term price of firearm ownership. The efficacy of this approach is open to question.

Keywords: gun regulation; insurance; gun control; gun insurance; liability; torts

About the article

Professor of Law and Co-Director of the Rutgers Center for Risk and Responsibility, Rutgers Law School

Published Online: 2017-08-29

Published in Print: 2017-08-28

Citation Information: Journal of Tort Law, Volume 10, Issue 1, Pages 23–39, ISSN (Online) 1932-9148, DOI: https://doi.org/10.1515/jtl-2017-0013.

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© 2017 Walter de Gruyter GmbH, Berlin/Boston.Get Permission

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