Constitutional Carry Proposal - A Case for Firearms Insurance

Updated: Nov 15


By Seth Batiste, Ph.D.


Introduction

In 2019, El Paso, Texas experienced a mass shooting. In fact, Texas has been home to several high-profile mass shootings. The state ranks 27th in gun-related crimes* (Texas | Giffords).


Texas' gun deaths continue to rise and Houston is also experiencing a wave of gun violence involving minors. Houston’s mayor, Sylvester Turner, held a press conference this year addressing the massive wave of shootings on the city’s roadways, and the increase in gun violence from home invasions.


A statistic particularly alarming is that 64 percent of all suicides occur using firearm. Few leaders talk about mental health and guns at the same time. Here are some additional figures about firearms:

  • Gun violence costs the Lone Star State nearly $17 billion annually.

  • Many gun owners in the state do not practice adequate gun safety, as many gun owners report firearms stolen from vehicles and even in open spaces within the home.

  • According to the FBI’s National Crime Information Center, the number of guns reportedly stolen in 2007 was 13,000 compared to 26,000 in 2016, a 100 percent increase in firearms thefts.

  • Overall, nearly 200,000 guns were reported stolen within a 10-year period in Texas.

Second Amendment

The Second Amendment was passed by Congress September 25, 1789. It states: “A well regulated Militia, being necessary to the security of the free State, the right of the people to keep and bear Arms, shall not be infringed.” The 27 words in the Second Amendment have been some of the most heavily debated by Constitution experts. According to Constitutional experts Jeffrey Rosen and Jack Rakove, during the American Revolution, groups of able-bodied men who protected towns were often referred to as militias. The Second Amendment was initially employed to prevent government overreach and tyranny.


The Constitutional Carry, sometimes referred to as "Permit-less Carry" legislation becomes unconstitutional when it eliminates the need for training as the Constitution expressly cites the relevance of a “well-trained.”


Regulation of the Militia

Militia was defined earlier in this article; however, another perspective cites that a US militia entails “all able-bodied male citizens” between the ages of 18 and 45. In the early days, Congress could not train militia. The Militia Act of 1903 brought jurisdiction of militias under the states through the creation of National Guard, satisfying this portion of the constitution of “well-trained.”

In 1916, the National Defense Act (NDA) of 1916 placed control of the National Guard loosely into the hands of national government under specific circumstances, such as national emergencies. This also allowed the federal government to enlist National Guard troops for service, again satisfying constitutional obligations for training.


To better understand the thinking of the time, one might consider the Alexander Hamilton's excerpt explaining “a well-trained militia” in the Federal 29 of The Federalist Papers. In 1789, the founders were concerned that a standing army could be used for future tyranny. Founding Fathers’ solution to a tyrannical use of standing armies by King George III are evident in the 27 grievances listed in the Declaration of Independence that notably include limiting military as superior to civilian authority and shunning the stationing of a standing army among civilian populations during times of peace.


At that time, militias were not self-appointed as they are today, but lured by state governments to service with the notion that they would be defending their families, homes, and neighbors - a notion that lends itself to individual gun ownership with little substance for “well-regulated” evident. Though the “individual right theory” was and is a prevailing belief, the notion of a one-man militia was never part of the collective thought process of constitutional framers. Under the “individual right theory,” the Constitutions prohibits the government from restricting firearms possession.


These militias eventually became known as the National Guard, but there was always an implied expectation that militias would one day receive standardized training from the federal government as part of the “well-trained” (or regulated) clause. In Texas, like many other states, there seems to be some rebellion against this very clause, yet many firearms owners attest that any sort of regulation goes beyond constitutional authority by citing a small portion of the Second Amendment. This selective ignorance of the Constitution has been the source of much discord.


A major misconception about the Constitution is the “right to bear arms” clause guaranteeing individual gun ownership. A 2008 Supreme Court decision finally adopted that notion some 219 years after the writing to the Constitution. Based on the rationale above, this proposal has been drafted for consideration by Texas’s governing bodies and is not pursuant to political affiliation, party, or rank.


The Proposal


According to Merriam-Webster’s Dictionary, a militia is defined as “a part of the organized armed forces of a country liable to call only in emergency” or “a body of citizens organized for military service.” The former, if the Merriam-Webster Dictionary is to be used, is the most likely use of the term today, based on the Second Amendment wording of the word. A second definition provided by the Merriam-Webster Dictionary defines militia as “the whole body of able-bodied male citizens declared by law as being subject to call to military service.”


The latter definition, in scope, limits those who have the “right to bear arms” to those willing or able to serve in the military, if called upon. Therefore, if we take the first definition and this one, the individuals who are “able-bodied” in times of emergency also qualify for duty in the nation’s armed services. The Supreme Court, in District of Columbia v. Heller (2008), failed to define “militia” in its ruling, but held in a 5-4 decision that a person could carry a firearm as part of individual protections that are not connected to military purposes as long as that individual was lawful.


In the most recent wave of mass school shootings, the issue has been raised as to what weapons constitute weapons for self-defense and what role do those categorized as assault weapons play in the Supreme Court’s ruling. That ruling also gave gun owners more protections in that firearms “bound by a trigger lock,” even in the home, violated gun owners’ rights, even if seemingly sensible in scope. To some degree the 2008 Supreme Court ruling assumed the common sense of individual gun owners would ultimately prevail. Based on Supreme Court rulings and existing practices, the United States is in clear violation of its own Second Amendment based on the very idea that individuals have the right to bear arms, which gun owners do, but conveniently fail to define exactly what a “militia” is for the purpose of satisfying the rest of the “right to bear arms” clause. If one part is up for interpretation, but another is not, this brings to question the potential significant bias in our nation’s justice system.


Proposed: Purchase Insurance or Go to Prison

Anyone owning a gun must purchase gun insurance. Rates shall be set by the appropriate issuing agencies.

  • Premiums shall be offered by participating insurance companies to all law-abiding citizens who own or seeks to own firearms. The manner in which business is conducted shall be free of additional regulations with insurance carriers being free to set rates as deemed fit under fair practices codes.

  • Insurance carriers that issue policies to any individual who is not actively part of a militia will be in violation of law.

  • Individuals producing fraudulent documents as evidence of militia participation shall be deemed in violation of law.

  • Persons not in compliance with these provisions shall be issued a warning for the first offense with the second offense being a felony punishable by up to ten (10) years in federal prison for the violation of Texas law.


The Second Amendment Right to a Militia

As part of the insurance policy, gun owners must register all firearms to a local “militia”. A person or persons can form a “militia” with written agreement of at least three (3) eligible members who are not related in the first degree of sanguinity (by blood). The local militia has the right to set rules and by-laws governing each person wishing to be a member. The militia shall be established in accordance with the Second Amendment of the United States Constitution. Members of the militia have the right to set local militia policy, which includes, but is not limited to, who may be a part of that militia with the exception of a three-member formation which will require additional, non-related members to join and also meet local and state expectations of a militia. Militia groups shall not infringe upon the rights of potential members based on race, religious affiliations, sexual identity, and other right protected under by law and/or the U. S. Constitution. Militia groups must be registered with the U. S. Alcohol, Tobacco, and Firearms (ATF). A militia not registered with the ATF may receive penalties, fines, and possible prosecution should any legislation be passed by governing bodies.

Where Can Individuals Join A Militia

Individuals may form a militia, a requirement of three (3) persons with the militia having existing and separate firearms insurance apart from each member of that militia. The militia must be registered with the ATF and be in good standing. Individual firearms holders may also join a militia formed from such entities as Concealed Handgun or Open Carry classes that may offer militia-related services to those taking classes. Militias may also be formed through gun clubs, at gun shows, and any many deemed reasonable, safe, and free of scrutiny as long as eligibility requirements are met.


What Happens if a Member of a Specific Militia Commits a Crime?

Each militia is responsible for monitoring effective firearms safety for its members that include the mental wellness of its members. Militias may set rules, standards, and expectations that govern each individual member who wishes to join. In the event a member of a particular militia is suspected of a crime, the local militia can be liable for such actions of that member or members. Federal laws shall be implemented to allow the investigation of individual members of a militia where a member was involved in a crime with the use of his or her firearm. It must be determined that militia groups conduct due diligence to ensure members are law abiding and intend to remain legally compliant.


Law Enforcement and Firearms Carriers

  • Militias need to show proof of firearm insurance if police request it.

  • Police officers who pull militia members over for a traffic violation will ask to see proof of insurance

  • Additionally, militia members need to produce proof of firearm insurance if involved in an accident.

  • The law requires militia to show proof of firearm insurance as part of an annual vehicle inspection.


Registering for Firearms Insurance

When purchasing firearm insurance policy, the insurance company will send ID cards, which should be immediately put in the glove compartment and kept there, so that it can be accessed immediately after an accident or if a police officer asks to see them.


FIREARMS INSURANCE COVERAGE IN TEXAS

More insurance means more protection. In the event of a firearms accident, additional insurance can be helpful.

  • In instances where the firearm has been discharged causing bodily harm to another individual, it can be helpful to understand coverage options beyond some minimum requirements. Depending on the type and amount of firearms insurance, the insurance company may pay any pending litigation or liability up to a certain amount, including medical bills. If the injured individual has firearms coverage, he/she may use that coverage. The firearms coverage covers medical bills, court fees, and other relevant costs. Knowing the different types of coverage can help firearms carriers best determine which type of insurance coverage is suited for their needs in the event of an incident.


Liability coverage

  • Liability coverage should be required in Texas. It pays the costs of medical bills, funeral expenses, lost wages, serious injury, pain and suffering, property damage and repair, as well as provides additional compensation to the injured.


Specialized coverage

  • With specialized coverage, the insurance company will pay for specific damages covered under the policy for property damage and repair up to the actual value or replacement value of damaged property- whichever is the least amount.


Comprehensive coverage

  • Comprehensive coverage is similar to “specialized coverage” but covers the costs of property repair and replacement, firearms theft, use of owner’s stolen firearm in a crime, or accidental discharge of a firearm that causes damage or injury.


Uninsured/Underinsured Firearms coverage

  • Uninsured or Underinsured firearms coverage includes a pay out of all damages, including bodily injury and property damage if the covered party uses the firearm or is injured by a firearm in incidents such as a mass shooting, drive-by, etc. If this proposal becomes Texas law, it is assumed that, like required automobile coverage, not all Texans obey such laws.


Proposal Rationale:

  • Both pro-regulatory and anti-regulatory sides view any type of regulation very differently

  • IF you take someone who grew up around guns, their perception is likely very different to someone who has not been around guns.

  • I have noted that both side on the gun debate have a communication problem; When one side hears the word regulation, there is the perceptual difference to opponents. I have yet to hear an approach, at least, that is not threatening to the other side.