George Washington University Law School associate dean Alan Morrison
Photo: Diego M. Radzinschi / NLJ
The Obama administration has made a number of important proposals designed to limit the availability of assault weapons and to prevent felons, those with serious mental illness and minors from purchasing guns of any kind. There is another complementary approach that should be tried, especially because significant parts can be accomplished at the state level: Raise the price of gun violence. Here are some ways to do that, without taking away anyone's firearms.
First, use the tax system to raise the price of violence. Heavily taxing the purchase of firearms would probably never pass, and would do nothing about the millions of guns already in private hands. Besides, guns don't kill — bullets do, and they have to be purchased for guns already owned. Many gun owners use their weapons for hunting or target practice, and there is no reason to tax those ordinary uses. The trick is to find a way to impose significant taxes on those who buy bullets for illegitimate uses. That means distinguishing between legitimate and illegal uses of bullets.
One way to accomplish this goal is to establish a voluntary registration system for all privately owned firearms. Those who chose to register their guns would receive a card that would entitle them to purchase — tax free each year — as many bullets for each of their guns as any reasonable gun owner could use. Just show your card and a picture ID, and there would be no tax on bullets for your quota, which could easily be monitored by the same computer systems that verify the right to purchase a gun. No one would be required to register, but not doing so would make bullets much more expensive. Of course, criminals and others who are not permitted to own firearms would probably not apply for the discount, but if they did, knowing who owned a particular gun would help law enforcement track down those who illegally use them. And, for those who insisted on buying clips that held more than 10 rounds, the tax should be much higher.
The tax approach would probably have to be instituted at the federal level, but states could also raise the price of gun violence by creative uses of their liability systems. A major problem with guns is the failure of some owners to secure them when they are not in use, so that they do not fall into the hands of children and others who should not have them, who in turn kill or maim innocent victims. It is difficult to write a law that both tells the gun owner what must be done in all circumstances to safeguard the weapon, without making it nearly impossible for the owner to make legitimate uses of it.
The more sensible approach is to make the owner liable for deaths and serious injuries resulting from use of his or her gun, unless the owner can prove that he or she used "all reasonable measures," or some other very high standard, to prevent an unauthorized person from using the gun, including preventing theft. Whether the owner met that standard would be up to a jury that would, in effect, rule in favor of the owner or the victim — or more likely, the victim's family. With that kind of law in place, gun owners would probably want to obtain liability insurance, which would bring the oversight of the insurance company to help assure compliance with the law. And it might cause some current owners to decide that they really did not need some or all of their guns — an added bonus.
There is one form of gun violence — suicide — that kills almost 18,000 Americans every year, and that would require a modification of the liability approach to be effective. Almost 90 percent of suicides are accomplished with a handgun, and for obvious reasons, those attempts almost never fail, unlike other methods that succeed only about 10 percent of the time. Many suicides are of young people, who obtain the gun from a family member. Even if the relative-owner were liable for the suicide death, the family would probably not sue one of its own, and if there were a recovery, the money would simply be shifted among family members. For those reasons, when the death is a suicide, the law should provide that the state should have a legal claim for a civil penalty against the gun owner who did not adequately safeguard the weapon. The amount would be based on a fixed schedule, such as $5,000 per year for each year of the deceased's remaining years of life expectancy. And the money recovered could be used to assist victims of gun violence if the gun owner could not be located or was financially unable to pay the damages.
Tougher laws on acquiring guns, and more severe punishment for those who attempt to do so illegally, are very important, but we need alternative approaches. The right to own a gun carries with it significant responsibilities, including paying for the harm done by them. It's time to look to our tax and liability systems to help reduce gun violence, by making those who do not use guns for legitimate purposes, or do not properly take care of them, pay for the violence that results.
Alan B. Morrison is Lerner Family Associate Dean for Public Interest and Public Service Law at George Washington University Law School.
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