Wednesday, January 16, 2013

The War on Gun Violence (Part 1)

(Part 1:  Today's "Executive Actions", Obama-care, and the Second Amendment)

This is the first in a series of posts on gun violence and the Second Amendment -- a subject that's been on my mind a lot lately.

DISCLAIMER:  I don't practice law any more; none of this is me practicing law or providing a "legal opinion"; it's just my own personal take on things.

Since this morning's White House announcement has already generated a lot of confusion and inaccurate reporting, I figured I'd start out by examining an especially obscure part of it:  Item 16 of 23 on the president's list of Gun Violence Reduction Executive Actions:

     16.  Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

Along with the two-page list of "executive actions" (a confusing term for an announcement that the president and his Administration will do 23 things, including issuing Presidential Proclamations, asking Congress to pass new laws, and a bunch of other stuff; not 23 executive orders), the White House released a 22 page document entitled Now Is the Time: The President's Plan to Protect our Children and our Communities, which has this to say about Item 16:

     PRESERVE THE RIGHTS OF HEALTH CARE PROVIDERS TO PROTECT THEIR
PATIENTS AND COMMUNITIES FROM GUN VIOLENCE: We should never ask
doctors and other health care providers to turn a blind eye to the risks posed by guns in
the wrong hands.

 ...
  Protect the rights of health care providers to talk to their patients about gun
safety: Doctors and other health care providers also need to be able to ask about
firearms in their patients’ homes and safe storage of those firearms, especially if
their patients show signs of certain mental illnesses or if they have a young child
or mentally ill family member at home. Some have incorrectly claimed that
language in the Affordable Care Act prohibits doctors from asking their patients
about guns and gun safety. Medical groups also continue to fight against state
laws attempting to ban doctors from asking these questions.
The Administration
will issue guidance clarifying that the Affordable Care Act does not prohibit or
otherwise regulate communication between doctors and patients, including
about firearms.


Some folks may not realize that the Affordable Care Act (aka "Obama-care") says anything at all about guns and gun safety ... but Section 2717 of the Act ("Ensuring the Quality of Care") contains a subsection (2717(c), on page 19 of this text of the Act) entitled PROTECTION OF SECOND AMENDMENT GUN RIGHTS:

 ‘‘(c) PROTECTION OF SECOND AMENDMENT GUN RIGHTS.—[As
added by section 10101(e)(2)]
‘‘(1) WELLNESS AND PREVENTION PROGRAMS.—A wellness
and health promotion activity implemented under subsection
(a)(1)(D) may not require the disclosure or collection of any
information relating to—
‘‘(A) the presence or storage of a lawfully-possessed
firearm or ammunition in the residence or on the property
of an individual; or
‘‘(B) the lawful use, possession, or storage of a firearm
or ammunition by an individual.

‘‘(2) LIMITATION ON DATA COLLECTION.—None of the
authorities provided to the Secretary under the Patient Protection
and Affordable Care Act or an amendment made by that
Act shall be construed to authorize or may be used for the
collection of any information relating to—
‘‘(A) the lawful ownership or possession of a firearm
or ammunition;
‘‘(B) the lawful use of a firearm or ammunition; or
‘‘(C) the lawful storage of a firearm or ammunition.

‘‘(3) LIMITATION ON DATABASES OR DATA BANKS.—None of
the authorities provided to the Secretary under the Patient
Protection and Affordable Care Act or an amendment made
by that Act shall be construed to authorize or may be used
to maintain records of individual ownership or possession of
a firearm or ammunition.

‘‘(4) LIMITATION ON DETERMINATION OF PREMIUM RATES OR
ELIGIBILITY FOR HEALTH INSURANCE.—A premium rate may not
be increased, health insurance coverage may not be denied,
and a discount, rebate, or reward offered for participation in
a wellness program may not be reduced or withheld under
any health benefit plan issued pursuant to or in accordance
with the Patient Protection and Affordable Care Act or an
amendment made by that Act on the basis of, or on reliance
upon—
‘‘(A) the lawful ownership or possession of a firearm
or ammunition; or
‘‘(B) the lawful use or storage of a firearm or ammunition.

‘‘(5) LIMITATION ON DATA COLLECTION REQUIREMENTS FOR
INDIVIDUALS.—No individual shall be required to disclose any
information
under any data collection activity authorized under
the Patient Protection and Affordable Care Act or an amendment
made by that Act relating to—
‘‘(A) the lawful ownership or possession of a firearm
or ammunition; or
‘‘(B) the lawful use, possession, or storage of a firearm
or ammunition.

...


MY TAKE ON THIS:  

All sorts of goodies were inserted into Obama-care -- the crowning achievement of the first Obama administration --  to ensure it received enough votes in Congress to be enacted into law.  2717(c) was inserted to reassure the NRA and other Second Amendment advocates who were concerned that government-mandated healthcare would be used to erode Second Amendment rights.  

The Obama administration, having secured passage of Obama-care thanks in part to 2717(c), is now attempting to minimize the impact of 2717(c) on its newly-declared War on Gun Violence.

Under the Act, you can't require a patient to disclose firearms-related information, and you can't collect or maintain such information -- but the Obama administration wants to "clarify" that you can still "ask" specifically "about guns and gun safety".  

Legal?  Probably.  Item 16 hardly pushes the envelope on legal hair-splitting.  Remember "Don't Ask, Don't Tell" ... or "It depends on what the meaning of the words 'is' is"?  But you may end up needing to give your patient the equivalent of a Miranda warning before "asking" about their guns:

     "I need to ask about you about firearms in your home and safe storage of those firearms.  You have the right to remain silent.  I can't keep records of anything you tell me.  But I can't turn a blind eye to the risks posed by guns in the wrong hands, either.

A necessary -- or even helpful -- measure in the opening salvo of the War on Gun Violence?  I have my doubts.

33 days since Newtown.  Day One of the War on Gun Violence.

More soon.

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