Playing Mind Games With The Second Amendment

Are you one of the more than 40 million Americans who suffer from depression or anxiety? If so, then hold on to your guns, because a trip to your doctor for relief could strip your constitutionally protected right to keep and bear arms.

In typical Machiavellian fashion, President Barack Obama is using public safety as an excuse to violate federal law, pry into your personal medical records, and add your name to a federal database tracking individuals with diagnoses of mental illness. Obama originally announced his intent on January 16, 2013, when he signed 23 executive orders purportedly intended to curb gun violence. One of them aims to “address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act [HIPAA], that may prevent states from making information available to the background check system.” Notice that the president regards your medical privacy rights as “unnecessary legal barriers.”

How does this affect your gun rights? Federal law contains a mental health prohibition, disqualifying certain people with psychiatric diagnoses from owning guns. The Federal Gun Control Act of 1968 forbids possession of firearms by anyone judged “as a mental defective,” and it vaguely defines that term as a person identified by “lawful authority” to be a danger to himself or others, or to be lacking in mental responsibility. The act allows government officials to rob “mental defectives” of their gun rights, which can only be restored by a long and costly court process.

Like other ambiguously written laws, this one is easily abused. “Mental defective” is already liberally applied to anyone the government deems as being incapable of managing his own affairs. “The problem is growing,” said Larry Pratt, executive director of Gun Owners of America (GOA). He told The New American, “We have learned that if a fiduciary has been appointed for any reason, that is being used as a predicate for grabbing guns.” The National Rifle Association reported in April, “Under existing federal regulations, a person who experienced a temporary reaction to a traumatic event or who has trouble handling household finances may well be treated the same as a violent psychopath.”

But Obama intends to make this dangerous law worse. Characteristically, he’s avoiding what he obviously considers another “unnecessary legal barrier,” vowing in his January State of the Union address to pursue his anti-gun agenda “with or without Congress.” True to his word, the Department of Health and Human Services (HHS) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) delivered a one-two punch in January, each proposing bureaucratic dictates designed to broadly expand the federal mental health prohibition.

HHS proposes modifying HIPAA so healthcare providers can turn private patient information over to the National Instant Criminal Background Check System. NICS is an FBI database established under the Brady Handgun Violence Prevention Act of 1993. GOA calls it the “government’s gun blacklist.” It is worth noting that the HIPAA Privacy Rule already includes provisions whereby healthcare professionals may warn family, caregivers, and/or law enforcement “regarding threats of serious and imminent harm made by the patient.” In some cases it mandates “duty to warn” reporting. Ironically, this information about the Privacy Rule is available on the HHS website and amounts to admission by the agency that its new regulation is completely unwarranted in terms of public safety.

The ATF rule would augment the definition of “mental defective” to include anyone determined by any federal, state, local, or military court to be either “mentally unstable” or an “irresponsible person,” and could even apply without a court order to those receiving outpatient treatments. Commentary published May 2 in Los Angeles’ CityWatch points out that “there is no definition of the term ‘irresponsible,’ leaving it up to a variety of bureaucrats and institutions to add anyone to NICS.”

Announcing the proposed regulation, Attorney General Eric Holder made the Orwellian claim, “It is emblematic of the Justice Department’s broader commitment to use every tool and resource at its disposal to combat gun violence and prevent future tragedies while respecting the Constitutional rights to which all Americans are entitled.” Holder did not explain how all Americans’ rights are respected when some have their rights violated.

Neither HHS nor ATF officials returned calls inquiring about the current status of the proposed rules. It is not known when either will be finalized.

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