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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

etc.

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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