Saturday, August 16, 2008

Gun owners and liability

A Rutgers (New Jersey) law professor argues for imposing so-called strict liability on gun owners:
Ordinarily, gun owners who injure innocent people, or whose guns are used by children accidentally or by criminals intentionally to inflict harm, are liable to the person injured only if they are negligent in a way that caused the injury.

For instance, if a gun owner's child takes the gun and shoots a playmate with it, the playmate is compensated for the injury only if the gun owner acted unreasonably. If the gun is stolen and finds its way into the hands of a criminal who shoots someone, the gun owner is liable only if negligent, and perhaps not even then.

Similarly, if a gun owner shoots an innocent bystander in error, the gun owner has to pay for those injuries only if he or she acted unreasonably.

However, for some dangerous instruments, society imposes liability without fault - that is, the person who keeps or uses the item is liable for injuries to others even if he or she is as careful as can be.
Perhaps it is time to think about handgun ownership as the type of activity that should give rise to liability without fault. Thus, while those unlawfully threatening gun owners obviously could not recover damages for their injuries, innocent bystanders and others injured by gun owners would be compensated.

A move toward absolute liability would ideally be accompanied by private insurers' willingness to insure gun owners against such liability. Such insurance should be separate from standard homeowners' insurance, so that homeowners who do not own guns are not required to subsidize those who do.
However, if such an approach were practical, one problem should not be its constitutionality. While, under Heller, the Second Amendment confirms a personal right to own a handgun, it surely does not preclude states and localities from ensuring that gun owners pay for the harm their handguns inflict upon innocent people.

Article here. Somehow I doubt the professor would support strict liability for misuse of any other fundamental, constitutionally-protected human right.

Indeed, if this is such a good idea, why not first impose strict liability on other inherently dangerous items, such as automobile drivers, who kill and injure far more people than gun owners, or swimming pool owners, or politicians and law professors whose words and actions make it harder for innocent citizens to effectively defend themselves.

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