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In Newtown, the President tasked Americans to look at the problem of gun violence with new eyes. Other diaries have proposed a wide range of remedies. In this diary, I want to suggest a thought experiment about an approach that, while not banning weapons, might seriously dampen citizens' desire to own and keep so many guns.

My idea is partially predicated on a study that just came out from the DOJ about the 1.4 million guns that were stolen from homes and businesses from 2005-2010. I will come back to this further down.

First, all proposed responses to gun ownership must pass the Second Amendment hurdle. The text of the Second Amendment is simple and direct (some argue too simple):

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
I emphasized the word keep because, although I am not a lawyer, I don't see anything in the Second Amendment that gives Americans the right to be casual or careless in how they keep their guns.

- What if they give the code to the gun safe to a psychotic relative?
- What if they leave their guns unsecured and a burglar takes them?
- What if they leave the Glock in their car and it is lost during a car break-in?
- What if they take it a bar, get drunk, they are overpowered and it is taken?

We place a heavy civil liability burden on car owners, on bar owners, on doctors, on  product manufacturers, on ... just about everyone else in American society. Lack of reasonable care opens them up to serious financial liability in civil Tort. Why should a careless gun owner be exempt?

So by all means keep and bear your gun ... but if you are a sloppy custodian and it gets used for an ill purpose, you should be held strictly liable for the consequences. You pay or your insurance pays ... if you have insurance.

I'll develop more implications after the orange muzzle flash.

As I understand it, there are several types of legal liability. One important distinction shifts the burden of proof between the plaintiff and the defendant:

Ordinary liability requires that people (or corporations) pay for harm they do to others. The harm needn't be intentional, but there must be a degree of recklessness involved. The onus is on the plaintiff to prove that recklessness occurred.

* Doctors are liable for malpractice if their care causes harm. Did they dot the i's and cross the t's in their care?
* My car hits a pedestrian (and I wasn't drunk). Did the pedestrian dash out? Was I texting?

These are typical cases for a judge or jury to weigh.

Strict liability is often seen in cases of defective products or services or in situations where there is assumed to be simply no excuse for an faulty action.

- A toaster manufacturer nicks the wiring in assembly and the toaster causes a fire.
- A food processor cooks a batch that is tainted in a way that makes people sick.

In cases like these, the plaintiff doesn't have to prove that the defendant (the manufacturer) was negligent. By voluntarily choosing to make and sell the product, the manufacturer is deemed to have automatically assumed the liability. It comes  close to the concept of "guilty until proven innocent".

Similar strict interpretations apply in certain areas of the criminal law:

- Drivers with elevated blood alcohol are presumed to be responsible for any accident in which they are involved, almost regardless of the physical circumstances.
- A driver is caught speeding. It doesn't matter if they claim they didn't see the speed sign.

All of this is not new. Stricter liability has evolved over many decades in Common Law and it can easily be codified in Statute Law. Legislatures can (and do) pass laws to impose stricter liability in certain situations.

In cases of strict liability, the best (and often only) defense is to prove that the defendant pro-actively took every reasonable precaution (i.e., did their due diligence) to prevent the harm from occurring. Note that this diligence must have preceded the event that caused the harm and the diligence must have been fully 'active' at the time of the event. Practically speaking, since people seldom know in advance when a problem will occur, they must maintain due diligence on a permanent, active basis.

So what might this mean to gun control?

Suppose we push for legislation that puts the onus on gun owners to show that they always have active control of their weapons. They must prove due diligence if, in any manner, they lose control of the gun that they own and a harm results. How might that play out?

* Burglars break into the (modern) gun safe and steal the guns ... owner not liable
* Owner leaves Glock in nightstand during vacation and burglars find it ... owner liable
* Licensed dealer sells gun to customer after background check ... dealer not liable
* Owner sells gun to stranger in gun show parking lot ... owner liable
* Owner leaves guns at range and range is burgled ... owner not liable, range maybe
* Owner takes son/daughter hunting, carefully monitors weapon use ... owner not liable
* Owner gives code to gun safe to teenage children ... owner liable
* Owner leaves Glock in glove compartment and car is broken into ... owner liable
* Owner is drunk, is overpowered and concealed gun is taken ...  owner liable
* Owner is sober, is overpowered and concealed gun is taken ... owner not liable
* Gun is not registered ... owner liable


Under this standard, if owners 'lose control' of their gun(s) and a harm results, their only defense is to show they continually exercised due diligence.

There is nothing in this that prevents or limits gun ownership. There is also nothing that prevents owners from being stupid. They can 'self-insure' (aka take their chances). However, the potential cost is now very real.

Might this put a damper on some of the allure of gun ownership? I'm betting on it.  

Annual home gun thefts have been dropping, but they are still a major problem. The DOJ report has some fascinating figures.

* From 2005 to 2010, 1.4 million firearms were stolen from homes and businesses
* Over 75% of the firearms were stolen in the midwest and south (red states)
* 70%+ thefts are from white households
* 91% of the thefts involved handguns
* 90% of the thefts involved multiple weapons

They may not know it now, but a stricter liability standard would put a lot of gun owners in a much more perilous financial position.

Gun owners would want to buy and use safes ... or leave the guns at a licensed range. They would be more careful to secure the guns whenever they were not in personal control of the weapon. If they are in personal control, it would behoove them to be sober and vigilant.

Most gun owners would probably want to buy a new gun ownership liability rider on their umbrella liability insurance. Allstate and State Farm will likely become very interested in their handling arrangements. Plus, their premiums might be significant.

Gun dealers would want to make sure that their paperwork i's were dotted and t's crossed.

Gun shows would ban the actual sale of guns, except through licensed dealers.

Assault weapons (especially in large, harder to secure numbers) would be less attractive, since the odds of their loss leading to expensive harm would be higher.

The net result could help to serve as a brake on rampant, ridiculous gun ownership.

There are lots of ways to tweak the law by adjusting the liability criteria. For example, low capacity long guns, or long guns and handguns in rural areas (i.e., working guns) might be exempted or given a lower proof threshold.

From a political perspective, it won't be any easier to pass laws like this than to pass significant restrictions or outright bans. However, I would like to think that at least this would avoid some of the Second Amendment arguments.

Thoughts? Comments?

Since I am not a lawyer, if our dKos legal community wants to weigh in and support, correct or adjust my thinking, I would be especially grateful.

Originally posted to grapes on Tue Dec 18, 2012 at 09:57 AM PST.

Also republished by Repeal or Amend the Second Amendment (RASA).

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Comment Preferences

  •  Tip Jar (3+ / 0-)
    Recommended by:
    Wee Mama, SilentBrook, cohenzee

    Maturity: Doing what you know is right - even though you were told to do it

    by grapes on Tue Dec 18, 2012 at 09:57:59 AM PST

  •  We do (0+ / 0-)

    Millions of people own guns, many of them multiple guns. They are responsible, sane people who are not "just looking for a reason", nor paranoids carrying their guns to the bathroom.

    This is not a gun issue - everyone wants to make it one, and that's understandable, because a gun is a simple piece of metal - an easy, tangible villain - and the solution, while politically difficult, is intellectually simple, at least in theory: ban guns.

    The real problem, however, is mental health. School shooters have varied in how they got their guns, and whether even more restrictive laws would have prevented them getting them, but they've all shared one thing - mental and emotional problems.
    We've eviscerated mental health services in this country, and it's cost us over and over again. Millions of guns are out there, never taking or threatening an innocent life - but there are an uncounted mass of people with serious mental problems posing a daily threat because of our own cheapskate-ness and our continuing bias against mental health as a "real" problem.

    Take away guns - they'll use knives (22 children stabbed in a rampage attack in China, just the other day) or bombs (to this day, our largest school massacre - 38 children and 6 adults in Bath, Michigan in 1927 - involved dynamite, not guns) or a car or . . . whatever. Dangerous mentally ill people will find a way. It won't always be a front-page, high-body-count event like this - but single and double murders at a time add up to quite likely more people than are killed each year by guns.

    If we make this about nothing but guns, we will miss a great opportunity to solve the real problem, and save many more lives than we will by keeping good people from owning guns.

    “If you are irritated by every rub, how will your mirror be polished?” - Rumi

    by Jaxpagan on Tue Dec 18, 2012 at 10:22:42 AM PST

    •  Bad example (4+ / 0-)
      Recommended by:
      jan4insight, grapes, SilentBrook, Nica24

      That school attack in China?  Twenty-two wounded. Notice the slight difference?

      •  Yeah, it's called "luck" (0+ / 0-)

        The nutcase in China - some kind of Apocalypse type - was slashing without, apparently, serious (or at least, focused) intent to kill. Fatally wounding a large number of small children in a schoolyard with a good sized knife would not be a serious trick for a rampaging killer truly intent on doing so. That he wounded so many without one fatality is less about the inefficiency of knives (cause they really aren't, if you have any idea what you're doing) than it is evidence that he was more interested in slashing as many as possible than he was with killing.

        “If you are irritated by every rub, how will your mirror be polished?” - Rumi

        by Jaxpagan on Tue Dec 18, 2012 at 10:37:23 AM PST

        [ Parent ]

    •  Those 22 kids in China (2+ / 0-)
      Recommended by:
      grapes, SilentBrook


      When the going gets rough, the average go conservative. --Henry Rollins

      by Beelzebud on Tue Dec 18, 2012 at 10:37:03 AM PST

      [ Parent ]

    •  Sorry, it's a gun issue. And btw (2+ / 0-)
      Recommended by:
      SilentBrook, Nica24

      hundreds of good, responsible people are deciding, enough is enough, as I commented yesterday:

      And btw, wasn't Ms. Lanza described as a responsible gun owner? She ended up arming a mass murderer. If you want to base your argument on that, we really need to up the bar of responsible gun ownership.

      Handmade holiday gifts from Jan4insight on Zibbet. Get 10%off everytime with coupon code KOSSACK.

      by jan4insight on Tue Dec 18, 2012 at 10:37:39 AM PST

      [ Parent ]

      •  Lanza's problem wasn't how she handled her guns (1+ / 0-)
        Recommended by:

        It was about how she handled her son - who should have been under serious psychological care. But, again, since that's unavailable for a multitude of reasons to many people dealing with mentally ill relatives (see the brilliant "I am Adam Lanza's Mother" diary).
        Had she put him under proper treatment - and done a better job of keeping him away from her guns - her entire gun collection would today have a body count of 0.

        “If you are irritated by every rub, how will your mirror be polished?” - Rumi

        by Jaxpagan on Tue Dec 18, 2012 at 10:41:37 AM PST

        [ Parent ]

        •  But she didn't. To reflect your argument, (0+ / 0-)

          if she had not had the guns, or if she had secured them so he couldn't get them, then he could have gone on playing video games in the basement and everyone in Sandy Hook would have had a nice day.

          Handmade holiday gifts from Jan4insight on Zibbet. Get 10%off everytime with coupon code KOSSACK.

          by jan4insight on Tue Dec 18, 2012 at 10:59:22 AM PST

          [ Parent ]

  •  Um, give insurance companies more power (1+ / 0-)
    Recommended by:

    so they can decide who can afford the insurance to have a firearm, just like they currently decide who can afford the insurance to have access to effective health care?

    I don't know that I would find your plan agreeable, but if you could figure out how to enforce it you'd probably increase the numbers of available jobs for actuaries and claims investigators.

    What about this plan instead?

    LBJ, Lady Bird, Anne Richards, Barbara Jordan, Sully Sullenberger, Ike, Drew Brees, Molly Ivins --Texas is no Bush league! -7.50,-5.59

    by BlackSheep1 on Tue Dec 18, 2012 at 10:23:39 AM PST

    •  Own a car? (2+ / 0-)
      Recommended by:
      grapes, SilentBrook

      You already deal with this. So why should guns be any different from a car (after all, one standard argument is that cars kill people too).

      •  There are strong aspects to the analogy (1+ / 0-)
        Recommended by:

        AFAIK, anyone can 'own' a car.

        To actually put it on the road, you have to get it plated, in many states you have to show proof of insurance, and you have to have a passed a test to get a driver's license. All of this is similar to the 'due diligence' that I think we should all expect of gun owners.

        They may have a right to 'own' as many as they want, but we need to jack up the incentives to be good custodians of their weapons ... by increasing the financial consequences if they are lax and something bad results.

        Maturity: Doing what you know is right - even though you were told to do it

        by grapes on Tue Dec 18, 2012 at 10:37:14 AM PST

        [ Parent ]

      •  Is owning a car in the Bill of Rights? (1+ / 0-)
        Recommended by:

        And you're allowed to own a car, just not drive it, without it being insured.

      •  more than one, actually (0+ / 0-)

        at least one of which is still waiting for me to find the funds to restore to roadability. I'm also sheltering a non-roadworthy one for a friend, until we can get it repaired enough for her to sell.

        In light of my recent experience with an Allstate (my insurance) vs State Farm (the guy who hit me's insurance) claim settlement, I'm not real fond of car insurers either. I suppose I should count myself lucky Allstate only refused to pay for my repairs and threatened to seize any funds I recovered to help pay for them from the guy actually at fault.

        LBJ, Lady Bird, Anne Richards, Barbara Jordan, Sully Sullenberger, Ike, Drew Brees, Molly Ivins --Texas is no Bush league! -7.50,-5.59

        by BlackSheep1 on Tue Dec 18, 2012 at 11:39:14 AM PST

        [ Parent ]

  •  lawyers, guns, and money: good for the economy (3+ / 0-)
    Recommended by:
    jan4insight, SilentBrook, raincrow

    yksitoista ulotteinen presidentin shakki. / tappaa kaikki natsit "Nous sommes un groupuscule" (-9.50; -7.03) 政治委员, 政委‽ Warning - some snark above ‽

    by annieli on Tue Dec 18, 2012 at 10:23:47 AM PST

  •  This is not a standard that the other rights (1+ / 0-)
    Recommended by:

    are held to...and really the Bill of Rights is what the gov cannot do to us as individual citizens, no?

    More and more I think the 2nd must be amended in order to be able to do something even like what you've proposed.

  •  Liability for misused Constitutional rights (1+ / 0-)
    Recommended by:

    should be approached VERY, VERY carefully. I am thinking of the various struggles to map the edges of our First Amendment speech rights, and what I consider the serious impingements on the right to abortion, and the right to be free from unreasonable search, seizure, and surveillance.

    Imposing criminal and civil punishment for losing control of a firearm seems like it would help, especially in the case of young rampage killers who almost always get their guns from relatives. But for all the horror and grief we're processing right now, the fact remains that there are 1/3 billion of us, and even in a year such as this, the number of spree killers who act out in a particular year is between 1:30 million and 1:60 million.

    Reducing the number of stolen private firearms would make some dent in the number of guns available for crime, but according to a PBS Frontline piece that seems to have run in summer 2009 (couldn't find a precise timestamp on it), an ATF agent told journalists:

    "Stolen guns account for only about 10% to 15% of guns used in crimes..."

    Insofar as the more common forms of gun crime -- fatal shootings, and non-fatal assaults and robberies (8800 and 260,000, respectively, in 2010) we need, just for starts, a publicly available database of the guns recovered in gun crimes, by manufacturer, model, serial number, and the gun's SOURCE: the name and FFL# of the dealer; the military facility from which it was stolen/vanished; an indication that it was illegally manufactured and/or smuggled into the country; an indication that it was stolen from OR RESOLD BY a private owner; an indication it was marked as defective/destroy by the military but worked just fine...


    I think that will speak volumes to the American electorate. I think it will finally unmask and force action against unscrupulous or ... serially careless ... dealers, potentially reveal to us a gobsmackingly porous wall between military armories and the street, etc.

    Before limiting a Constitutional right, we should actually scope out the target and aim before we shoot at it.


    by raincrow on Tue Dec 18, 2012 at 11:24:10 AM PST

    •  This is not just about stolen guns (2+ / 0-)
      Recommended by:
      HamdenRice, raincrow

      Making owners take greater care will reduce gun thefts, but the real point is to simply make owners take more care. Period.

      Right now, gun owners face few, if any, of the normal liabilities that attend ownership of most other devices.

      If you build a backyard pool and you don't install and maintain a fence to keep kids out, you are liable.

      If you install a home generator and don't properly secure the wiring, you are liable.


      Hold gun owners to at least the same standard that they face with their cars, boats, gas grills, etc.

      Since guns are far more lethal than any of these devices, I would argue that owners should be held to an even higher standard of custodial care.

      If gun owners faced this sort of responsibility, I think they would elect to own fewer guns and be more careful with the ones they do own.

      Just my $0.0002

      Maturity: Doing what you know is right - even though you were told to do it

      by grapes on Tue Dec 18, 2012 at 11:45:26 AM PST

      [ Parent ]

      •  This is a Constitutional right. It must be handled (1+ / 0-)
        Recommended by:

        very advisedly. If you can impose liability because its exercise is attended by risk, what liabilities can you impose on the exercise of other rights? I have to think restrictions on the 2nd Amendment will have to look a lot like restrictions on speech considered to be "incitement".

        Your stated goal is to impose restrictions so as to discourage the exercise of a Constitutional right. In my book that puts you in the same class as Republicans who deliberately craft voter suppression laws, and forced-birthers hellbent on passing onerous laws that make abortions too difficult to obtain.

        I am quite open to ways to curtail gun theft and gun crime in ways that do not overly burden the individual right to keep and bear arms (for instance, I myself don't think I am overly burdened if I am limited to a magazine capacity of 9 rounds).

        But if the deliberate suppression of the exercise of a Constitutional right is your intention, I will fight you every goddamned step of the way.


        by raincrow on Tue Dec 18, 2012 at 01:00:47 PM PST

        [ Parent ]

        •  Constitutional to have, not to misuse (0+ / 0-)

          Adam B's diary on the rec list shows that even the current SCOTUS believes reasonable restrictions on gun use are constitutional.

          I would like to see gun owners face up to the same custodial responsibilities that owners of any other potentially dangerous device routinely face now.

          Actually, given that guns have far fewer beneficial uses and pose far more threats than most other common devices, I think the standard of care should rise to meet the threat.

          I have no doubt that applying this standard would make gun ownership more costly, less convenient and less fun.


          Maturity: Doing what you know is right - even though you were told to do it

          by grapes on Tue Dec 18, 2012 at 01:46:03 PM PST

          [ Parent ]

        •  People can take a gun to a protest but not a (0+ / 0-)

          sign on a stick.

          Please don't tell me that you think that first right is more important than the second one.

          202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

          by cany on Wed Dec 19, 2012 at 05:54:16 PM PST

          [ Parent ]

  •  Here's my nitpicking point (1+ / 0-)
    Recommended by:

    I think your overall point is well taken and several other diarists are raising similarly interesting ways of imposing liability on gun owners whose guns are used to hurt or kill people.

    You are using a number of legal concepts of liability that have somewhat precise meanings that you probably don't need to get into right now.

    For example, you mention that ordinary liability requires some degree of "recklessness." Actually ordinary liability of the kind you are talking about requires "negligence." Weirdly, recklessness is yet another legal term that refers to a different and more severe form of fault. One professor of mine neatly summed up the difference this way: Negligence is when you were not as careful of a risk as a normal person (the "reasonable man" standard); recklessness is when you understood the risk and decided to run the risk anyway.

    Also your diary is primarily about carelessness in handling guns (a good way to look at the issue), but then suggest strict liability. Strict liability is liability without fault -- ie without regard to negligence, recklessness or any other state of mind. It does not mean "guilty until proven innocent." In fact, the plaintiff still has to prove his case. It's just that he doesn't have to prove negligence.

    So for example, the plaintiff still has to prove causation. In other words, if I sue the soup company because I think their can of soup made me sick, if the state law for products like that is strict liability, I don't have to prove that the soup company was negligent; but I still have to prove that the soup made me sick. The company's best defense is not that it was super careful; in strict liability cases the carefulness used by the company is irrelevant. The company is not guilty until proven innocent. So the best defense might be causation -- that I never in fact actually ate the soup.

    It takes about the first year of law school to begin to wrap one's mind around liability concepts, so I wouldn't worry about the level (negligence, recklessness, strict liability) at this point - but focus on the more general issue of gun owners being liable under some to be determined standard.

    Btw, though, strict liability would be an interesting way to impose liability because strict liability is also imposed on certain activities considered super dangerous or risky -- like handling explosives.

    •  Thank you! (1+ / 0-)
      Recommended by:

      I wanted to raise the concept that rather than try to ban guns, we impose a fair, but challenging, obligation to use them carefully.

      Hopefully, that will encourage owners to be more cautious and also deter some prospective owners from assuming the risks that go with that responsibility.

      I assumed that I probably wouldn't get the details right.

      So, your comment is very enlightening and I am grateful.

      Maturity: Doing what you know is right - even though you were told to do it

      by grapes on Tue Dec 18, 2012 at 12:23:34 PM PST

      [ Parent ]

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