New in National Review: “Obama’s Long Game on Guns”

January 6th, 2016

My initial reaction to the President’s announced executive action on guns was that it was quite modest. After further reflection, and watching the President’s press conference yesterday, I realized that the goal of the action was not for today, but for tomorrow.  Specifically, with a few minor modifications of federal regulations, the President has allowed state and local governments to vastly expand the number of individuals who cannot purchase a gun on a national basis.

My latest piece in National Review focuses on modifications to the HIPAA regulations, which now allow states to report personally identifiable information to the national instant-background check system. In states that have mandatory reporting without any due process of law, such as New York, the so-called “mentally defective file” will balloon. Additionally, being mentally defective includes not being able manage one’s own financial affairs, irrespective of whether a person is actually dangerous. Finally, the President’s decision to research into smart guns was likely design to have the effect of making them available nationwide, and thus triggering state bans (like in New Jersey) that prohibit the sale of any gun that is not smart.

Here is the introduction:

In the twilight of his presidency, with his goals of gun control unfulfilled, President Obama has pivoted to the long game. During a teary-eyed press conference yesterday, Obama lamented that federal legislation “won’t happen during my presidency.” But with the stroke of a pen, he laid the groundwork for the states to do what Congress would not: limit the number of people who can own guns. Until gun-control advocates can gin up enough support in Congress, they have targeted state and local governments as the next frontier. At face value, the president’s executive actions are modest, and will have little practical effect. Their potency, however, lies with the power they give to progressive states to strengthen gun control nationally, without any action by Congress.

The executive actions released this week are not earth-shattering. Rather, they create the framework for the states to significantly limit who can buy a gun nationwide, and what kind of guns are available for sale. The president closed his press conference yesterday and said “tomorrow, we should do more. And we should do more the day after that.” His executive action today paves the road for state action tomorrow, and congressional action in years to come.

On the revised HIPAA regulations:

Yesterday, the Department of Health and Human Services announced that it would modify HIPAA regulations to allow state health agencies to disclose personally identifiable information of a “mental[ly] defective” individual directly to NICS. 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 contrast, Texas governor Greg Abbott tweeted “come and take it.”

And how it has been implemented in New York.

New York is in an ideal position to start providing this information. 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.

Now that the Obama administration has waived the health-privacy regulations, it is only a matter of time before the names in New York’s dubious database will be incorporated into the federal registry. Other states will no doubt follow suit, conglomerating massive databases of people who may or may not actually have serious mental health issues, who likely pose no danger to others, and maybe can’t balance a checkbook. They will hand this information over to the federal government, without any additional scrutiny, where it will be used to impose a blanket ban on hundreds of thousands, or perhaps millions, of Americans from exercising their Second Amendment rights. All without an act of Congress.

And the discussion on “smart guns”:

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?”

This is not a laughing matter. In 2002, New Jersey enacted a law that said when “personalized handguns are available,” only smart guns could be sold in the Garden State. To date there simply hasn’t been a market for these weapons. However, as NPR reported, if federal agencies purchase these smart guns in large quantities, it would increase their availability nationwide and trigger the New Jersey law. Other states could enact similar laws to the Garden State’s and lead to a massive prohibition on all arms that are not smart.