Op-Ed: COVID-19 has not stopped mass shootings

Monday, July 20, 2020 - 4:19pm

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Even a nationwide lockdown and pervasive social distancing brought on by a dangerous pandemic is not enough to stop mass shootings in the United States. For more than four months, Americans have had significantly limited social interaction and they have stayed away from most other humans, either as a result of their own decisions or the decisions of others. Yet mass shooting events have not waned. 

In fact, they have increased.

According to an analysis of data from the Gun Violence Archive, which tracks gun violence in the U.S., from 2014 to 2019, between January 1 and July 19, the country averaged 189 mass shooting incidents per year, which caused an average of 207 total deaths per year. During the same period in 2020, the U.S. had 310 mass shooting incidents, which caused 261 deaths. A mass shooting is defined by the Gun Violence Archive as “4 or more shot or killed, not including the shooter,” which is the definition that this analysis assumes. Other sources define a mass shooting slightly differently. 

From the date the state lockdowns started (with California on March 19, 2020) to July 19, 2020, the U.S. had 248 mass shootings, which caused 181 deaths. During that same period in the years 2014 to 2019, the nation averaged 135 mass shootings, which caused an average of 132 deaths per year. On an annual basis, since 2014, the data show that mass shootings are becoming a more pervasive problem.

The nation’s attention has been fixated on the COVID-19 pandemic and many have relaxed much-needed attention toward gun violence and mass shootings in our country. If a pandemic, which substantially reduces human interaction, cannot eliminate — or at least materially reduce — mass shootings and mass shooting deaths, then clearly, no matter how extreme the circumstances, an individual who wants to hurt a lot of people is still going to try to hurt a lot of people. 

In 2019, American families suffered 39,484 gun deaths (24,090 suicides and 15,394 killings of other people) and 30,040 gun injuries. That’s eight people every hour killed or injured by a gun. Or one person by the time you finish reading this article.

In 2018, of the top causes of death in the U.S., eight were medical (heart disease, cancer, chronic lower respiratory diseases, stroke, Alzheimer’s, diabetes, influenza and pneumonia, kidney disease). The other two were unintentional injuries and suicide. Suicide is the 10th leading cause (47,173 deaths in 2017). The number of gun deaths is not far behind. 

The main difference between the top 10 causes of death and gun-related violence is that the U.S. spends considerable effort and resources trying to prevent deaths caused by the top 10. We do virtually nothing to prevent gun deaths. The reason is lack of political will, despite the fact that most Americans (60 percent) think we should more stringently regulate guns. The lack of political will to end or reduce gun violence stems from the effectiveness of the National Rifle Association in convincing enough voters that we face a binary, black and white choice: Either we can uphold the Constitution’s Second Amendment right to own a gun or we can reduce gun deaths, but we can’t do both simultaneously. These highly-motivated voters then demand, in primaries, that state and federal candidates treat the gun issue as a binary, black and white choice, which is why Republicans take no action — not even after 20 children were murdered at Sandy Hook Elementary School in 2012. But this is a false presentation — we can do both. 

There are three avenues to address gun deaths and injuries. We can remove the desire of individuals to commit these terrible acts, we can remove these individuals from society or we can remove the instrument these individuals use to commit these acts. 

First, desire. If we can change the mindset of potential mass shooters, then we can stop mass shootings. The folks who make the argument that mass shootings are a mental health problem are correct. Only a severely mentally or emotionally crippled individual would consider committing a mass shooting, let alone follow through with one. But if a global pandemic is insufficient to dissuade mass shooters from leaving their house to commit mass shootings, what will deter them? Yes, the desire to commit a mass shooting is a mental health problem, but one that lacks a feasible solution.

Second, liberty. If we remove potential mass shooters from society, they cannot commit mass shootings. To remove them, first we must find them. But we can’t even find the 10.5 to 12 million undocumented immigrants in the U.S. — so how could we have found the people who committed 417 mass shootings in 2019 in a population of about 330,000,000? The Orwellian level of police-state surveillance required to smoke out possible mass shooters is not something Americans would tolerate and is, most likely, an unconstitutional invasion of privacy. And any effort to hunt down potential mass shooters could lead to mental health McCarthyism. Further, school and health professionals typically already have a threat assessment plan in place, to identify and address troubling behavior. If we cannot identify potential mass shooters, how can we know precisely who to remove from society? We certainly do not want to guess. Like curbing the desire, there is no feasible way to curb the liberty of future mass shooters. 

Third, instrument. If we remove guns from society, then, logically, mass shootings cannot occur. The easiest way to kill a lot of people at the same time is with one or more guns — knives, Chinese throwing stars, samurai swords and candlesticks in the observatory really can’t cause an equivalent amount of damage. It’s too difficult, if not impossible, for a civilian to get something that can — like an M1A2 Abrams Main Battle Tank, an F-16C Fighting Falcon, a rocket-propelled grenade or the MOAB (mother of all bombs). But potential mass shooters easily can obtain one or more guns. Curbing the instrument is the only part of the equation with a feasible solution. 

Let’s take a deep breath — seriously, if reading this already has you heated, take a deep breath and think about a puppy in a UPS driver Halloween costume. I saw one on the Internet and it’s adorable and hilarious. Let’s remember that the vast majority of both gun reformers and gun owners (which groups, of course, are not mutually exclusive) want to eliminate or reduce gun deaths. And we can, while we still protect the constitutional right to own a gun. 

The Supreme Court has decided an individual has the right to own a firearm but permits reasonable and narrowly tailored restrictions on constitutionally guaranteed rights when a compelling state interest exists. You have the right to free speech, but you can’t scream fire in a crowded theater and you can’t threaten to kill the president. The government cannot inflict cruel and unusual punishment on a citizen, but the death penalty exists. In the case of guns, the Supreme Court already permits reasonable restrictions like authorizing, registration and background checks because a compelling state interest exists: the lives and safety of citizens. 

No matter how many new gun regulations we pass, we will never stop all gun deaths and injuries. Similar to how airport security checkpoints don’t prevent all contraband from getting onto airplanes, this is not a reason to not have airport security. The realistic goal of an obstacle put in place to prevent horrible things is not to prevent all of those horrible things. Rather, it is to prevent as many of those horrible things as possible. Security at the airport makes it more difficult for someone to smuggle a gun onto a plane. Don’t you wish we had the airport security we have now on 9/11? I do. Just like I will wish, when the next mass shooting happens, that we had a system in place that had made it more difficult for that future mass shooter to obtain the gun(s) he used. 

As a gun reform supporter, my goal is not to burden gun owners. I only want to prevent gun injuries and deaths and keep families and neighborhoods safe. I prioritize public safety. The burdening of gun ownership is only a side effect. The chasm between my gun reform position and the position held by the NRA is prioritization. The NRA prioritizes gun ownership and, as a result, typically fights against legislation that will infringe on the Second Amendment. Gun owners also want to eliminate gun deaths and injuries, but they also want to feel like their constitutional right to own a gun is not constantly under attack. 

These two positions are bridgeable. One approach is mandating that all gun owners carry general liability insurance, which is a reasonable, narrowly-tailored reform. Think car insurance for a gun. 

The upside: Mandating gun liability insurance is a private industry solution that will create jobs by expanding an already existing insurance product that the owners of 400 million guns will legally have to purchase. It will leave background checks to private insurance companies, which, to sustain profitability, will have to carefully assess the risk of each individual who wants to buy or already owns a gun. That review will take a little time, which automatically will create a brief waiting period. It will incentivize insurance companies to create gun safety innovations to minimize gun injuries and deaths, which will minimize insurance payouts and maximize profits. It will guarantee that a pool of money exists for gun victims and their families in the event of gun injuries and deaths. And as a result, it likely will reduce gun deaths and injuries and make our communities safer. Likely, and not definitely, because we have not yet tried it. 

A fall 2013 article, Insurance and Gun Control, posted by the Cato Institute notes that “Most states prohibit liability insurance for intentional wrongs because such coverage undermines deterrence by enabling wrongdoers to shield their personal assets.” Effectively, insurance covering intentional wrongs creates moral hazard, like if someone bought an auto liability insurance policy and then intentionally drove into his neighbor because he was playing music too loudly. That driver might be more inclined to do that because he knows that his insurance policy will pay any monetary damages due to the neighbor, and he will have to pay nothing out of his own assets. But neither we as a society, nor insurance providers, want that. The driver should have to use his own money to pay damages for this type of behavior (and, of course, face the legal penalties).

Though in the case of intentional gun injuries and deaths, the deterrence and moral hazard calculations are different. First, if COVID-19 is not a deterrent, why will the existence of insurance be? I imagine when a potential mass shooter weighs whether to commit the horrifying act, his financial liability or the source of the funds that will compensate his victims are not factors. Second, insurance companies can require that monetary awards to victims must first get paid from the assets of the offender until those are exhausted. Third, the insurance underwriting process should help weed out folks who are at higher risk of an intentional gun crime (certainly not perfectly, of course). Between the insurance industry and lawmakers, I am sure they can creatively solve the nuanced challenges that gun liability insurance poses so that we as a society can reap the benefits of it. 

The downside: Mandating gun liability insurance will place a new burden on gun owners and gun buyers. True, but in my view, a reasonable one. We have insurance for everything else. And guns are more dangerous than anything else. 

It will cost gun buyers and owners money. But, if there’s a limit on how much gun buyers are willing to spend to purchase a gun, then — by the basic laws of supply and demand — the price of a gun will decrease to compensate and gun sellers and manufacturers will absorb the cost. And if not, because the number of gun injuries and deaths in a given year is small compared to the number of guns in circulation (about 70,000 deaths and injuries versus 400 million guns), if gun liability insurance is mandated and not optional, the cost of insurance should be minimal because the risk of a gun injury or death will get spread across the entire population of gun owners. If an average payout for a gun injury or death is $1 million (I am thinking about this like a $1 million life insurance policy payout), then for 70,000 gun deaths and injuries each year, the total insurance payout would be $70 billion, which is a $175 annual insurance premium for each gun (about $15 per month). Obviously, there are other business costs involved (e.g. overhead and profit), but this shows the order of magnitude. This calculation also does not include gun injuries and deaths attributed to law enforcement, which already carries liability insurance. So the number of claims will be fewer than 70,000.

It will add a step to the gun purchase process, making it take more time. True, but insurance companies will make the process as efficient as possible, so they don’t risk losing the insurance policy sale to a more efficient competitor. Plus, we want some delay. Because do we really want to let someone who is desperate to buy a gun just go into a store and buy a gun whenever he or she wants, in whatever emotional state he or she is in at the time? A calm, responsible gun buyer can plan ahead for a hunting trip, a visit to a gun range or an addition to a gun collection. Someone in an emotional, agitated, dangerous state of mind who could commit a crime of passion cannot. 

Yes, bad people will still have guns and not have insurance. But if every transaction going forward requires that a buyer show proof of insurance, and penalizes gun sellers who do not verify that a buyer has legitimate insurance, the number of bad people with guns will inevitably decrease over time. Because the insurance requirement will make it more difficult for bad people to get guns. Insurance companies will work hard to deny insurance to high-risk individuals because they are economically incentivized to do so and they will incentivize gun owners to take precautions that many already take, for example, by offering a lower premium to a gun owner who takes a gun safety course. We can also incentivize gun owners to safeguard their guns by assigning liability to a gun owner for anything that happens with their guns as a result of their own negligence. This means that when gun injuries and deaths do inevitably happen, someone will be liable and someone’s insurance will pay. 

Mandating gun insurance is, of course, an infringement on the Second Amendment’s right to own a gun. But it’s one that I believe the Supreme Court will — and the NRA and gun owners should — find reasonable and narrowly tailored to the problem. Either the federal government or states can legislate this (and state laws may have to change to facilitate this). One or more states acting first will provide a case study on how effective this solution is. Will this approach vanish all mass shootings, gun crimes and gun accidents? Probably not, but it likely will reduce them while preserving the right of responsible citizens to buy and own guns. Is this approach as simple as it sounds? Of course not — do all types of guns pose the same risk, do state laws allow insurance companies to cover intentional acts, should a gun owner be liable for what happens with his gun if it gets stolen — but it is the job of a legislature to weigh solutions and work out details.

Though if it works, it might end the political fight over guns in society. 

Zachary Sheinberg is an attorney and LEO Intermittent Lecturer at the University of Michigan Ross and can be reached at zachs@umich.edu.

* This article has been updated to reflect corrected numbers.