Forbes - Cross-Posted at AskMarion: A shot heard ’round the blogosphere, Vice President Joe Biden’s suggestion that the administration might bypass Congressional participation to regulate guns in favor of using the executive order produced the inevitable choirs of “I told ya so” as Biden’s sound bite appeared to provide the proof that Obama was, indeed, coming for your guns.
But this time, the gun advocates were ready with more than just angry recriminations.
Acting with an assist from CNN, right-wing bloggers and gun advocates in the know, let loose with a tidbit of information they have, no doubt, been long chomping at the bit to unleash—the revelation that there is already a law on the books that would prevent the government from making good on Biden’s tantalizing suggestion, a law that would actually prevent the government from collecting data on firearm ownership and more.
And what might that law be?
That’s right—it turns out that there is, indeed, a provision buried deep in the thousands of pages that is the Affordable Care Act entitled, “Protection of Second Amendment Rights”. You’ll find it in Section 2716 part c of the Affordable Care Act although, to save you the trouble, I have re-printed the provision below for your perusal.
Certainly, one strains to imagine how anything touching on gun ownership, the Second Amendment, etc. could find its way into a health care reform bill just as it confounds the imagination to contemplate who might have been responsible for adding such a clause in the first place. Obamacare is, after all, primarily the creation of a President who gun advocates have long believed is out to strip them of their firearms—not to mention a law written, supported and passed by those in Congress identified as coming from the “far left” of the political spectrum under the leadership of Nancy Pelosi.
So, how did such a strange provision find its way into health care reform?
You might be surprised to learn that the language was offered in a Senate amendment proposed by none other than Senate Majority Leader, Harry Reid. While this news may come as a shock to those who view Reid as a leader of the left, politics will always trump ideology and—in the State of Nevada—politics dictates that running for office as a gun supporter is a way better idea than seeking office as a gun regulator. So, it should shock nobody that Senator Reid is a long-time gun rights advocate who has consistently counted upon the support of the NRA when running for election in his home state.
As for Reid’s reasons for burying a pro-gun measure into the body of the Affordable Care Act, the Majority Leader is said to have been concerned that the NRA planned to take an active position against the passage of Obamacare and decided, no doubt with the permission of Reid’s friend, NRA boss Wayne LaPierre, to head the problem off at the pass by putting language in the bill that would mollify the gun lobby.
Further, there was concern that a conspiracy theory then in circulation among right-wing circles—a meme suggesting that the Obama Administration had cleverly planted language in the ACA that could be used as a tool to get to the guns—would further erode public support for the legislation. For these reasons, Reid determined to insert some cozy language for the gun people into the Senate version of the ACA—language certain to escape public review at a time when the conversation was far more focused on hot button subjects like death panels, taxes and mandates.
For these reasons, the following language did, indeed, become a part of the nation’s controversial health care reform law:
(c) PROTECTION OF SECOND AMENDMENT GUN RIGHTS.—
‘‘(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 in- formation 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.
If you count yourself among those who object to any legislation or executive order that could limit or delay your ability to buy a flamethrower at the local gun show, this is certainly language that will put a smile on your face as this provision limits opportunities to collect and keep data on those who own firearms while creating some roadblocks when it comes to government’s ability to track whether or not you keep a weapon in your home, etc.
However, before you fire off a few rounds in celebration, you might want to take a good hard look at the actual draft of this section of the health care reform law because, unless you suspect that the President plans to put any newly proposed controls over firearms under the jurisdiction of the Secretary of Health and Human Services, I’m afraid you don’t really have much to celebrate.
The provision in question bars the HHS Secretary, anyone in the Secretary’s ‘chain of command’, and health professionals covered by this section of the ACA, from engaging in the collection of gun data through the ordinary course of the services they provide. By way of example, were someone to come into the emergency room for treatment of a nasty gunpowder burn, the attending physician would likely ask how the injury took place. When the injured answers by noting that something went wrong when firing his Bushmaster at the target range, this law prevents the physician, hospital or anyone else from feeding the information to a government data base and further prevents the HHS Department from collecting such data.
The law additionally prohibits the government from making the argument that, since guns can be deleterious to the health and wellness of people, it would be within the goals and objectives of the ACA to collect data on who has weapons in the effort to protect the health and wellness of of Americans. In other words, HHS cannot create a data base to collect info on guns under the theory that guns injure people’s health so they need to know where the guns are.
So, the good news for the gun folks is that the ACA is, indeed, prevented from being used as a weapon in the ‘War on Guns’ under the guise that guns are bad for people’s health. They can also take solace in the fact that the law prevents government from collecting any gun data resulting from information obtained in the course of medical providers doing their thing—much as HIPAA prevents such information from being used for a variety of purposes.
Beyond that, if you imagine that this obscure section of the Affordable Care Act is going to block the Administration from exercising whatever legal authority it may have to regulate guns in America, I’m afraid you will be quite disappointed.
I think all would agree that should the President resolve to use his executive powers to create a data base or any other regulatory provision, it is far more likely that such regulation would fall within the ambit of the Justice Department—not Health & Human Services—and nothing in the ACA prevents such data collection, or any other regulatory efforts, which would fall outside the limited jurisdiction created in Obamacare with respect to firearms.
So, to our friends at Breitbart and the others who believe they have discovered gold in their effort to prevent the administration from acting on its desire to bring sanity to our gun laws, I’m afraid you are going to have to reload as Obamacare is just not the magic bullet you are looking for.