In the twilight of his presidency, with his goals of gun control unfulfilled, President Obama has pivoted to the long game. During a teary-eyed press conference yesterday, Obama lamented that federal legislation “won’t happen during my presidency.” But with the stroke of a pen, he laid the groundwork for the states to do what Congress would not: limit the number of people who can own guns. Until gun-control advocates can gin up enough support in Congress, they have targeted state and local governments as the next frontier. At face value, the president’s executive actions are modest, and will have little practical effect. Their potency, however, lies with the power they give to progressive states to strengthen gun control nationally, without any action by Congress.
The Gun Control Act of 1968 prohibits a person from buying a firearm if he or she has been involuntarily committed or “adjudicated as a mental defective.” In subsequent federal regulations, the government added to the umbrella of “mental defective” a person who “lacks the mental capacity to contract or manage his own affairs,” regardless of whether the person poses a threat to anyone else.
To date, the National Instant Criminal Background Check System (NICS) “mental defective file” includes about 150,000 people. A report by the Congressional Research Services calculated that 99.3 percent of those on the list were referred by the Department of Veterans Affairs. Vets who could not manage their own financial affairs — who showed no propensity for harming anyone else — were legally barred from purchasing a firearm. It is highly doubtful that this arbitrary practice, which doesn’t even provide a hearing, would survive constitutional scrutiny under the Second Amendment or the Due Process Clause. Yet, in light of the president’s actions, this regime may be expanded beyond conceivable bounds.
Presently, the “mental defective file” is fairly small — almost exclusively financially unstable vets — because only the federal government could add names to the list. Before Tuesday, states were prohibited from reporting individuals because of the Health Insurance Portability and Accountability Act (HIPAA). A 2012 Government Accountability Office report found that “the absence of explicit State-level statutory authority to share mental health records was an impediment to making such records available to NICS.” However, with President Obama’s new executive action, these “unnecessary legal barriers” have been removed.
Yesterday, the Department of Health and Human Services announced that it would modify HIPAA regulations to allow state health agencies to disclose personally identifiable information of a “mental[ly] defective” individual directly to NICS. On its face, the regulation doesn’t require anyone to disclose this information, and merely allows certain entities that “are responsible for the involuntary commitments or other adjudications” to submit this information to the federal database. But on page 38 of the rule, HHS notes that “this final rule does not preempt State or other laws that may require reporting to the NICS.” In English, that means that while the executive action does not require entities to report this information, progressive states are free (and indeed invited!) to mandate that doctors collect and report this information.
Along with the president’s press conference Tuesday, Attorney General Loretta Lynch sent letters to 50 governors “permitting” them to report the names and information of such individuals from their states to the federal government. The NICS database can be expanded by leaps and bounds, through the actions of cooperative states, without the need for any congressional action. Supporting governors can take a hint. In contrast, Texas governor Greg Abbott tweeted “come and take it.”
New York is in an ideal position to start providing this information. In 2012, the Empire State enacted a law that requires doctors to report to authorities any patient “likely to engage in conduct that would result in serious harm to self or others.” After that initial report, a state bureaucrat who never visits with the patient adds him or her to a list of people prohibited from buying guns. The New York Times characterized the procedure, devoid of any due process of law, as “rubber-stamping.” In less than two years, nearly 40,000 people were added to the list.
Beyond expanding the scope of prohibited gun owners, the president’s executive action also has the potential to restrict the types of guns people can buy.
Now that the Obama administration has waived the health-privacy regulations, it is only a matter of time before the names in New York’s dubious database will be incorporated into the federal registry. Other states will no doubt follow suit, conglomerating massive databases of people who may or may not actually have serious mental health issues, who likely pose no danger to others, and maybe can’t balance a checkbook. They will hand this information over to the federal government, without any additional scrutiny, where it will be used to impose a blanket ban on hundreds of thousands, or perhaps millions, of Americans from exercising their Second Amendment rights. All without an act of Congress.
Beyond expanding the scope of prohibited gun owners, the president’s executive action also has the potential to restrict the types of guns people can buy. One of his executive orders directs the federal government to “promote the use and acquisition of new [gun] technology.” These so-called “smart guns” require a fingerprint scanner or a radio-frequency identification tag to be near the gun, before it will fire. During his press conference, the president joked, “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?”This is not a laughing matter. In 2002, New Jersey enacted a law that said when “personalized handguns are available,” only smart guns could be sold in the Garden State. To date there simply hasn’t been a market for these weapons. However, as NPR reported, if federal agencies purchase these smart guns in large quantities, it would increase their availability nationwide and trigger the New Jersey law. Other states could enact similar laws to the Garden State’s and lead to a massive prohibition on all arms that are not smart.
The executive actions released this week are not earth-shattering. Rather, they create the framework for the states to significantly limit who can buy a gun nationwide, and what kind of guns are available for sale. The president closed his press conference yesterday and said “tomorrow, we should do more. And we should do more the day after that.” His executive action today paves the road for state action tomorrow, and congressional action in years to come.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston. He is the author of Unraveled: Obamacare, Religious Liberty, and Executive Power (forthcoming in 2016). He blogs at JoshBlackman.com.