L. Neil Smith's

Number 8, May 1996

Gun Recovery Insurance

Or "How To Get Back Seized Guns, Punish the
Gun Grabbers and Make a Few Bucks in the Process"

By Sandy Sandfort

Exclusive to The Libertarian Enterprise

Because They Can

         I don't know how it is in other states, but in California most district attorneys will keep your gun if it's seized by the cops for any reason. They'll keep it whether or not you were convicted of anything and whether or not the gun had anything to do with the original charges. "Why?" you may ask. "Policy," they will sneer. "But that's not legal!" you might protest. "So sue us," they will smirk.
         You could sue, of course, and you'd probably win. But it would be a Pyrrhic victory, at best. Your legal fees, lost work hours and aggravation would cost you far more than the value of the gun.
         DAs love to tell crime-weary voters how many firearms they've "taken off the street" (even when they just took yours off your nightstand). And because DAs have an economic -- if not lawful -- advantage over you, they have no incentive not to keep your gun.

A Modest Proposal

         The market has evolved a safeguard against statistically rare, but individually disastrous calamities. It's called "insurance." By spreading losses among all policy holders, insurance companies can guarantee individuals will be compensated if their number comes up in "losers lotto."
         An insurance company could offer a policy that would pay off gun owners if their weapons were illegally confiscated by DAs or other government official. But that's not good enough. It does nothing to discourage unlawful gun grabbing now or in the future. What I'd like to see is something much more radical.

Litigation Insurance

         Imagine an insurance policy that doesn't pay you, the victim, directly, but instead pays lawyers to sue the officials who unlawfully took your gun. If they lose, you're not out-of-pocket one red cent. If you win, you get your gun back (and maybe a little bit more).
         There are a couple of federal statutes that facilitate this sort of action. The first is Title 42, Section 1983 of the Civil Rights code. It creates a cause of action against anyone acting "under color of statute, ordinance, regulation . . ." etc. who deprives you of "any rights, privileges, or immunities secured by the Constitution and laws . . . ." The second, Section 1985, adds "conspiracy" as a separate cause of action. In most DAs' offices, it wouldn't be too hard to prove conspiracy.
         At a minimum, unlawful gun confiscations violate the 2nd, 4th, 9th and 14th amendments to the U.S. Constitution. But don't forget state constitutions. Often, they have parallel protections that are clearer and stronger than the federal ones.
         Since this are civil actions, (1) it's possible (and common) to get punitive damages, and (2) you only have to prove your case "by a preponderance of the evidence" -- 51%, in layman's terms. These are the kind of odds I like.

Call to Arms (so to speak)

         Gun owners, would you be willing to spend a few dollars each year to defend your personal right to own a gun?
         Insurance brokers (I know you're out there), would you like several million new, highly motivated clients?
         NRA, 2nd Amendment Foundation and other pro-gun groups, would you like a no-brainer membership benefit that would have gun owners lining up like sailors outside a Tijuana whorehouse?
         If your answers are "yes," it's time for the brokers to draft, the gun groups to promote and the gun owners to buy. We need to start winning for a change.
         (And I haven't even told you about opening second and third fronts with taxpayers' derivative suits and recall petitions for malfeasance . . .)

"Sandy Sandfort is a logographer, factotum and troublemaker currently based in the San Francisco Bay Area. His e-mail address is: sandfort@crl.com

WANTED: original flat black issue grip panels (not oversized wrap-arounds) for Tokarev Model 30 pistol. ALSO: .38 Super Automatic conversion kit for same. lneil@lneilsmith.org or call (970) 484-6824.

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