“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The debate over the Bill of Rights, and what the Founders meant, has raged for decades, and unfortunately will continue. The liberal pews are filled with worshipers to the god of government regulation and “flexible construction” or the “elasticity” concept. A government that knows what is best for all people. It is with this foundation and reasoning that certain factions approach the Second Amendment.
To Conservatives – especially the “original intent” Conservatives – the Second Amendment is perfectly clear. It records that the States have not delegated to Congress the power to regulate or abridge (in any way) the right to bear arms. That authority has been reserved to the States. (See, Absent a Bill of Rights, Self-Promoting President Could Lead to a Destructive ‘Democratic Monarchy’.)
Unfortunately, there lurks in the bowels of current legislative mandates a potential Trojan horse through which opponents could attempt to invade and circumscribe Second Amendment rights.
Federal attempts at creating a national firearms registration scheme have been on-going ever since the passage of the Nation Firearms Act of 1934. However, there is no comprehensive national system of gun registration. In fact, federal law prohibits the use of the National Instant Criminal Background Check System (NICS) to create any system of registration of firearms or firearm owners. (18 U.S.C. § 926(a); 28 C.F.R. § 25.9(b)(3)). However, the individual states have a multitude of systems related to gun ownership, registration and limitations.
Setting aside the repetitive attempts to establish a unified federal registry, it is on the battlefield of those state laws that the attack on the Second Amendment occurs. Let’s use New York SAFE Act (Secure Ammunition and Firearms Enforcement), for example. New York law requires physicians to report to state officials any patient they deem “likely to engage in conduct that will cause serious harm to self or others.” (There is a question whether a patient that is presenting to the physician with signs of – or is seeking treatment for – mental health issues or illegal substance addictive conditions would require such a report.) The report goes to a county mental health official, who, assuming he agrees with the clinician’s assessment, passes it on to the New York State Division of Criminal Justice Services (DCJS), which determines whether the patient holds a firearms license or permit to purchase a handgun. If the person holds a license, the DCJS must notify the local licensing official, who must suspend or revoke the patient’s license and instruct him to surrender all of his firearms, including rifles and shotguns. If he fails to do so, police are authorized to seize them. 
Since the intent of these laws is to remove firearms from individuals who meet these disqualifying conditions, there could be a move to utilize the existing federal health laws to help achieve these confiscatory ends. How could this happen?
The Affordable Care Act (“Obamacare”) requires every citizen to obtain health care with policies that provide, at least the government’s mandated coverage. Under the guise of providing (aka, “mandating”) health care, all insurance policies must cover certain medical conditions. Obama’s administration promulgated implementing regulations which require coverage for “mental health” treatment. Certainly providing insurance coverage for mental health issues is humane, proper and logical. However, as will be seen below, even a well-meaning gesture can be manipulated to have an equally negative result.
Let’s step away from that issue for a moment. Let’s turn our attention to the issue of medical records. Part of the ACA made it a requirement that by Jan 1, 2014, all public and private healthcare providers must have adopted and demonstrated “meaningful use” of electronic medical records (“EMR”). (Penalties will be applied for non-compliance in the amount of a 1 percent reduction to providers in Medicare reimbursements.) The EMR consist of not only the patient’s doctor’s file, but also includes “records” of all “associate health care providers” (psychologists/psychiatrists; pharmacies, research centers, treatment facilities, etc.). These EMR are utilized for a variety of normal, routine purposes – billing, reimbursements, reporting, compliance, etc. This same EMR (PHI/PII) can be accessed and utilized for “authorized” purposes – including federal and state Law Enforcement purposes.  Electronic records, especially those that are subject to government reimbursement, are now subject to access and review by a larger universe of government agencies (at least 38 federal government agencies are specifically authorized in the government’s draft “Federal Health IT Strategic Plan” to obtain access to a patient’s protected health information (“PHI”)).
In accordance with the ACA and the Health Insurance Portability and Accountability Act (“HIPAA”), when a patient seeks medical advice (and periodically thereafter), he/she is provided a Privacy Notice regarding the patient’s PII (Personally Identifiable Information) and PHI. This Notice (which is not a “consent” form) informs the patient of his/her rights regarding the PII/PHI, and that in certain situations the patient’s information can be disclosed without notice or consent.
The HIPAA Privacy Rule was intended to recognize the legitimate need for public health authorities and others responsible for ensuring public health and safety to have access to protected health information to carry out their public health mission. The Rule also recognizes that public health reports made by covered entities (an entity that is subject to control under HIPAA) are an important means of identifying threats to the health and safety of the public at large, as well as individuals. Accordingly, the Rule permits covered entities to disclose protected health information without authorization for specified public health purposes.
Under HIPAA, health care providers are required as of October 1, 2015 to begin to utilizing the new government ICD-10 codes. These codes replace the existing ICD system. These codes are how a healthcare provider identifies what condition was treated, what procedures were performed, etc. These are then utilized to determine insurance coverage, reimbursement, reporting, tracking, etc. Under the ICD-10 system, Chapter “F” contains the codes which are utilized to describe mental health treatment and diagnoses.
Thus, as prescribed by the ACA, every citizen must have healthcare insurance meeting the ACA minimal coverage (which includes mental health coverage).  HIPAA requires every healthcare provider to comply with the EMR requirement with both PII/PHI and ICD-10 codes being provided to the government. This information can be utilized for any “lawful purpose” (which includes state and federal law enforcement purposes). 
Various states have limitation on sales and possession of firearms. These limitations include (as in NY) the exclusion/prohibition of sales of firearms to any individual who may be likely to engage in conduct harmful to himself or others.  These states would also, presumably, prohibit the possession of firearms by individuals who similarly are potentially ‘harmful’. Under many other states an individual must also undergo a federal (and a state) NICS (National Instant Criminal Background Check System) check prior to being able to purchase a firearm, to determine a “prohibited” status.
While there is already one government data base that is utilized to impose a limitation on the Second Amendment (NICS), under the ACA and HIPAA there is now a Second federal data base that, if not prevented by Congress, could be used to further erode our Second Amendment rights.
The list of tragic shootings in the U.S. are far too numerous – Amish school house; Virginia Tech; Sandy Hook Elementary; Columbine – going back to 1966 with Charles Whitman at the U of Texas tower. Aside from Islamic terrorism murders, the Second most discussed reason related to the mass murders is mental health concerns. Currently there is no federal prohibition on possession of firearms for mental health reasons. However, various states do have such limitations.
Since pursuant to federal regulations, access to PHI can occur for “lawful purposes” (state as well as federal), including “law enforcement” reasons,  it is surprising that certain political groups have not attempted, at the state level, to obtain access to federal information and databases (including EMR and PHI) as a means to further levy additional limitations on an individual’s rights to privacy and to “keep and bear arms.” It would not be beyond the pale for a state who opposes gun rights (NY, DC, CA, etc.) to invade such databases to identify those who are being treated for mental health concerns, and then confiscate their lawfully obtained firearms.
To head off the deafening howl from certain quarters that is by now reaching its peak, this author is not stating, insinuating nor advocating that mental health should not be treated, nor allowed by insurance coverage. Mental health is a truly tragic and costly (in many respects) condition which surely deserves all the attention it is getting – and more. But, it is not, and should not be allowed to be the reason or method to invade someone’s privacy and Constitutional rights.  Limitation of one’s Constitutional rights due to a mental health condition or treatment would only serve to reduce the impetus or desire to seek treatment and the effectiveness of mental health identification and treatment. It would be a detriment to the individual and the health care treatment sector and could increase the potential harm to society at large.
This author is raising a clarion call that with the advent of ACA, HIPAA and state “mirror laws” (and Obama’s recently announced gun control policy), the forced collection of more and more PII/PHI (of all kinds) and the establishment of government databases, that Congress must act and ensure that all individuals’ privacy and Second Amendment rights are not trampled, and are protected from use and/or access to these databases for political and ideological ends.  These forced databases are, in and of themselves, outside of the Second Amendment issue, simply one more step toward a totalitarian structure, and there needs to be a Congress with enough “vision” and courage to act to prevent this slide into an “all-knowing liberal government-god.”
 Under the Gun Control Act 1968 there are several categories of “prohibited individuals” to whom firearms may not be sold. “(4) has been adjudicated as a mental defective or has been committed to any mental institution” 18 USC 922.
 A covered entity may disclose protected health information to law enforcement officials if it is required to do so by law. 45 CFR Part 160, et. Seq.
 It should also be noted that under the ACA, individuals must comply with IRS requirements of providing insurance information demonstrating compliance. Query whether that could possibly give the IRS access to PHI.
 This article will not discuss, but it should be mentioned, that this PHI resident in any government server
may or may not be secure given the spate of “hacking” that is occurring almost daily.
 Some states have limitation on mental health disabilities, however, most states confine those disqualifications to individuals who were institutionalized, adjudged incompetent or a danger to others, or has been hospitalized due to mental disorder. A minority of states have disqualifications if an individual has been found to be a danger to himself or others or suffers from a “mental infirmity”. Thus, most states currently are limited to some form of judicial action before disqualification occurs.
 “A covered entity may disclose protected health information to law enforcement officials if it is required to do so by law. An example would be a state law mandating the reporting of certain wounds or other physical injuries.” “Averting a serious threat to health or safety: A covered entity may disclose protected health information if it believes: 1) the disclosure is needed to prevent or lessen a serious and imminent threat to the health or safety of a person or the public, and the recipient is able to lessen the threat.” (Emphasis added)
 This is exactly what is contained in President Obama’s gun control proposal which he intends to enact by Executive Order: Require background checks for all gun sales and strengthen the background check system. This would include removing barriers under the Health Insurance Portability and Accountability Act so that states may more freely share information about mental health issues involving potential gun purchasers.
 Such Congressional protections must also include prohibitions by other government agencies such as NSA.
Kenneth Kopf, Esq. is an attorney that has been practicing international law for over 30 years, has authored numerous writings on various U.S. and international political subjects, was a candidate for U.S. Congress, and has served as a Russian linguist within the U.S. intelligence service.
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