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Monday, November 30, 2009

Obama Care and Gun Rights

Last week, Second Amendment scholar David Kopel wrote on the Volokh Conspiracy how the pending health care bill may have a negative impact on the rights (or at least the wallets/purses) of law abiding gun owners. Many commentators have discussed how a bill as overarching as the Pelosi and Reid bills will by its very nature have to touch many aspects of the individual lives of Americans. With the supposed purpose of covering everyone while reducing costs, it is not a stretch to presume that at some point the government will begin telling us what we can eat, what we can drink, and even if we can own guns if it means reducing the cost of health care.

Sounds paranoid? Take a look at Kopel's analysis and decide for yourself.

Let’s look at the bill. The rules for a “Wellness Program” begin on page 87. In brief, if you participate in a Wellness Program, you can get a health insurance premium
discount of up to 30%. Stated another way, if you don’t participate in a Wellness Program, you will pay a substantial insurance rate penalty for not doing so. The definition of a “Wellness Program” begins in paragraph (B) on page 88:

“(B) The wellness program shall be reasonably designed to promote health or prevent disease. A program complies with the preceding sentence if the program has a reasonable chance of improving the health of, or preventing disease in, participating individuals and it is not overly burdensome, is not a subterfuge for discriminating based on a health status factor, and is not highly suspect in the method chosen to promote health or prevent disease.”

Pages 29–30 mention some of items that “Wellness and Prevention Programs” “may include.” The phrasing does not appear to exclude other items. In any case, the item for “Healthy lifestyle support” is broad enough to include almost anything.

Kopel writes that the definition of "Wellness and Prevention Programs" is very broad and that the assertion that it is not broad enough to include gun ownership is most likely incorrect. We have all heard of antis siting "public health scholarship" claims linking gun ownership to the health risks of families with guns in the home. While we know this is junk science, the antis will site the dozens of articles in journals to get an anti-gun Secretary of the Department of Health and Human Services to create an anti-rights definition of said "Wellness Program."

A regulation which said that a Wellness Program may (or “shall”) include a discount for not owning a gun (or not owning a handgun, or not owning a so-called “assault weapon”, or for not owning more than a certain number of guns) might be argued to be “overly burdensome.” But there’s no guarantee that a reviewing court would consider a mere discount for people who don’t own guns to be “overly” burdensome on gun owners.

Kopel reminds us in his post that Senator Reid is a strong supporter of the right to keep and bear arms and Kopel does not believe Senator Reid intends any harm to gun owners. But we all know that the intent of a senator or the Senate does not necessarily bind the hands of some political appointee and President Obama has appointed enough anti-gun appointees to make us all a little wary.

Kopel offered a fix to make sure the bill is clear in it's intent.

An amendment might say something like: “No wellness program, nor anything else in this bill or any regulation, policy, or practice thereunder, may create any discount or any other incentive that discourages the ownership, possession, use, or carrying of firearms, air guns, or ammunition, or of any type or quantity of firearms, air guns, or ammunition. This aforesaid prohibition shall be broadly construed, and in case any conflict with any other provision of this bill, the prohibition shall control. Further, the prohibition on incentives against the exercise of constitutional rights shall also protect the exercise of each and every right in Amendments I through VIII of the United States Constitution.”
Just one more example how a 2000 page bill that on its face would appear to have nothing to do with gun ownership can do a great deal of harm to gun owners.

Hat tip to Mark Levin.

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