New York: Damned If You Do Insure Guns, Damned If You Don’t

With the takeover of the New York state senate by liberal-leaning Democrats, prospects are improving for such measures as S2857A, sponsored by Sen. Kevin S. Parker (D-Brooklyn), which would require owners of firearms to carry $1 million in liability insurance. There are a number of problems with that idea, one of which turns out to be distinctive to New York. 

The general problems with gun insurance mandates were aired when the idea began to circulate widely a few years ago. Perhaps the biggest is that courts would and should strike down mandates aimed at burdening or doing away with the exercise of a constitutional right. As David Rivkin and Andrew Grossman wrote in 2013:  

Insurance policies cover accidents, not intentional crimes, and criminals with illegal guns will just evade the requirement. The real purpose is to make guns less affordable for law-abiding citizens and thereby reduce private gun ownership. Identical constitutionally suspect logic explains proposals to tax the sale of bullets at excessive rates.

The courts, however, are no more likely to allow government to undermine the Second Amendment than to undermine the First. A state cannot circumvent the right to a free press by requiring that an unfriendly newspaper carry millions in libel insurance or pay a thousand-dollar tax on barrels of ink—the real motive, in either case, would be transparent and the regulation struck down. How could the result be any different for the right to keep and bear arms?

And there's a special problem with trying to pull this kind of thing in New York, as our friend R.J. Lehmann, insurance expert at the R Street Institute, observes in a Twitter thread today: "New York now wants to require people to hold a kind of insurance that it sanctioned the NRA and an insurance broker earlier this year for selling at all." In that case, Gov. Andrew Cuomo claimed that private companies Lockton and Chubb conspired with the National Rifle Association to insure liability "against the public interest."  Lehmann goes on to say (Twitter breaks omitted): 

In its complaint against Lockton, [New York's regulator] said the Carry Guard program "provided insurance coverage that may not be offered in the New York State excess line market, specifically: (a) defense coverage in a criminal proceeding that is not permitted by law; (b) liability coverage for bodily injury or property damage expected or intended from the insured's standpoint in an insurance policy limited to use of firearms and that was beyond the use of reasonable force to protect persons or property; and (c) coverage for expenses incurred by the insured for psychological counseling support." If such coverages are contrary to New York state law, clearly one cannot require New York citizens to purchase them. 

Section 1 of Sen. Parker's S2857A requires a gun owner to maintain a liability insurance policy of at least a million dollars "specifically covering any damages resulting from any negligent or willful [emphasis added] acts involving the use of such firearm while it is owned by such person." Gun control advocates commonly draft insurance mandates to cover willful rather than merely negligent acts as part of their goal to drive up the cost of insurance, in part by pinning on gun owners legal responsibility for the purposeful acts of others.