When President Obama announced his executive order laying the groundwork for gun control regulations, many heaved a sigh of relief that it was not more stringent or far reaching. And it is true that he could have been much more direct and authoritarian, but that would have invited immediate legal challenges, so the initiative is more subtle, but devious none the less.
Obama just created a system that will grow and spread to the states, and it will have the ability to establish a gun registry and prohibit hundreds of thousands, even millions, from the ability to buy a gun. Obama opined that federal federal anti-gun legislation will not happen during his presidency, but his actions will have the same effect.
The Gun Control Act of 1968 prohibits those who have been involuntarily committed or determined to be “mentally defective” from buying a gun. Subsequent legislation adds to the list “those who lack the mental capacity to contract or manage their own affairs,” even if that person does not represent a threat to anyone else. The National Instant Criminal Background Check System (NICS) “mental defective file” currently includes about 150,000 individuals, including veterans who were not able to manage their own financial affairs. All of these individuals are precluded from owning a gun, even though there was no indication that they had a propensity for hurting someone.
Here is where Obama’s proposal becomes dangerous. The practice of placing someone on this list was arbitrary and did not even allow a hearing, but the total number of individuals on the list was fairly small. As a result of the president’s new orders, the Health and Human Services Department announced that it will modify the Health Insurance Portability and Accountability Act (HIPAA) and allow state health agencies to disclose personally identifiable information about “mentally defective” individuals directly to the NICS.
With President Obama’s new executive action, these “unnecessary legal barriers” have been removed. On its face, the regulation doesn’t require anyone to disclose this information, and merely allows certain entities that “are responsible for the involuntary commitments or other adjudications” to submit this information to the federal database. But on page 38 of the rule, HHS notes that “this final rule does not preempt State or other laws that may require reporting to the NICS.”In English, that means that while the executive action does not require entities to report this information, progressive states are free (and indeed invited!) to mandate that doctors collect and report this information. Along with the president’s press conference Tuesday, Attorney General Loretta Lynch sent letters to 50 governors “permitting” them to report the names and information of such individuals from their states to the federal government. The NICS database can be expanded by leaps and bounds, through the actions of cooperative states, without the need for any congressional action.Supporting governors can take a hint. In 2012, the Empire State enacted a law that requires doctors to report to authorities any patient “likely to engage in conduct that would result in serious harm to self or others.” After that initial report, a state bureaucrat who never visits with the patient adds him or her to a list of people prohibited from buying guns. The New York Times characterized the procedure, devoid of any due process of law, as “rubber-stamping.” In less than two years, nearly 40,000 people were added to the list. Beyond the lack of constitutional safeguards prior to extinguishing a fundamental right, doctors are ill-equipped to make this sort of determination of constitutional dimensions without any judicial process.The Times noted that “the vast majority of people with mental illnesses are not violent. Accurately predicting whether someone will be violent, they said, is also a highly fraught process.” This is especially true where there is mandatory reporting. Risk-averse doctors who fear being sanctioned have every incentive to be over-inclusive and to report names even if there is the slightest inkling of harm. This says nothing of the fact that it may stigmatize those with mental-health issues and chill their willingness to confide in their doctors. Beyond expanding the scope of prohibited gun owners, the president’s executive action also has the potential to restrict the types of guns people can buy.
Beyond expanding the scope of prohibited gun owners, the president’s executive action also has the potential to restrict the types of guns people can buy. One of his executive orders directs the federal government to “promote the use and acquisition of new [gun] technology.” These so-called “smart guns” require a fingerprint scanner or a radio-frequency identification tag to be near the gun, before it will fire. During his press conference, the president joked, “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?”