In a preternatural example of tone-deafness, an administration under fire for snooping into Americans’ privacy is now proposing to waive federal privacy laws so psychiatrists can report their gun-owning patients to the government.
The Department of Health and Human Service’s “notice of proposed rule-making,” floated by the White House in a Friday media dump, would waive portions of the federal Health Insurance Portability and Accountability Act (HIPAA) to allow psychiatrists to report their patients to the FBI’s gun-ban blacklist (the NICS system) on the basis of confidential communications.
The 1968 Gun Control Act bans guns for anyone who is “adjudicated as a mental defective or … committed to a mental institution.” Unfortunately, under 2008 NICS Improvement Act, drafted by Sen. Charles E. Schumer, New York Democrat, and its regulations, that “adjudication” can be made by any “other lawful authority.” This means a diagnosis by a single psychiatrist in connection with a government program.
In the case of nearly 175,000 law-abiding veterans, the “lawful authority” has been a Department of Veterans Affairs psychiatrist, who, generally, will take away a veteran’s guns by unilaterally declaring him incompetent and appointing a guardian over his financial affairs. Certainly, the findings can be appealed, but most veterans don’t have the tens of thousands of dollars to hire lawyers and psychiatrists to do so.
Although the problem hasn’t yet been as apparent in other areas, police and firemen on Social Security disability for post-traumatic stress disorder, Medicare seniors with Alzheimer’s, and people who as children were diagnosed under the federal Individuals with Disabilities Education Act program with attention-deficit hyperactivity disorder will ultimately face the same fate. Even a subsidized Obamacare policy might now make Americans participants in a federal program.
In fact, that process of expanding gun bans has now begun:
One gun owner in a virulently anti-gun state was placed on the gun-ban blacklist because many years ago, police, without the approval of any court, put him in a mental facility overnight. The facility found nothing wrong with him, but that didn’t stop his state from recently turning him in to the FBI for a lifetime gun ban.
In another case, a gun owner in an anti-gun state lost his guns because of a prescription for a psychiatric drug.
Will imposing gun bans on Americans who seek counseling “keep us safe”?
Ask the 175,000 veterans who have lost their guns. Shortly before taking their constitutional rights away with no due process, the government had no problem issuing them fully automatic assault rifles and sending them out to patrol the streets of Baghdad and Kabul.
Rather, the real agenda of the gun-hating Obama administration is to strip gun rights from law-abiding Americans, even if the result is to discourage people from seeking counseling.
However, protests the Department of Health and Human Services, the psychiatrist isn’t going to turn over his notes to the FBI — just an unsubstantiated finding that in his subjective opinion, for unexplained reasons, he finds his patient dangerous to himself or others. The danger only need be minimal under guidance issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, or the result of incompetence, and the psychiatrist is not allowed to say which. On the basis of this subjective, unexplained finding, the patient loses his constitutional rights.
Do you really think a hunter or gun owner feels somehow less violated when, as a result of sharing his deepest secrets in confidence, his name is turned over to government as either a dangerous or incompetent person and — as has happened — a SWAT team is sent to his house to seize his guns?
Furthermore, there is the practical problem that both the Constitution and the Brady Law give Americans a right to contest a gun ban. How is that even possible under this subjective, no-due-process system? The gun owner can pay for a second opinion and enter that psychiatrist’s notes on the record. Practically speaking, though, in order to exercise these constitutional and statutory appeals rights, the gun owner is going to have to waive his confidentiality.
The practical choice is this: Either forfeit your privacy or forfeit your guns.
Combine this with the fact that in some parts of the country, efforts are being made to coerce psychiatrists to report patients whom they suspect could pose a problem, and it’s clear where this is going: The “safe” course of action, for psychiatrists, will be to report more of their patients to the government, rather than fewer.
Is it any wonder that both patients’ advocates and gun owners warned the Department of Health and Human Services that its proposed actions would discourage treatment and endanger public safety? Of course, the exercise is not about public safety, but rather about President Obama’s efforts to destroy what his allies call the “gun manufacturers’ lobby.”
The problem for him is that neither Congress nor the American people support his efforts.
Mr. Obama has taken away more than enough of our personal privacy by executive fiat. Congress, therefore, needs to approve an appropriations rider that will stop this partial repeal of HIPAA from being implemented.
Michael E. Hammond is legislative counsel of the Gun Owners of America
This article ran in the January 7, 2014 edition of The Washington Times