Could Health Bill be anti-gun?

[Tim Nunan]

http://volokh.com/2009/11/24/health-bil ... -ownership

David Kopel • November 24, 2009 12:16 pm

Today’s Washington Examiner has an article about the concerns that Gun Owners of America has raised about the health care bill which is currently on the Senate floor. I am quoted therein, and I think that GOA has a good point. The Examiner article concludes with a contrary quote:

“It is very clear they are misreading the bill,” said Igor Volsky, a health care researcher for the Center for American Progress, a liberal think tank. “All this bill does is define what a wellness program is. It is a broad definition, but it is not broad enough to net gun ownership.”

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.This definition is extremely broad, and the assertion that it is not broad enough to encompass gun ownership appears to be incorrect. There is a very large body of “public health” scholarship which claims to show that gun ownership is a very large health risk to the family that has a gun in the home. I believe that much of this scholarship is of poor quality, and some of it is mere junk science. However, the existence of dozens of articles in public health and medical journals would almost certainly be enough for an anti-gun definition of “Wellness Program” by the Dept. of Health and Human Services to pass the deferential Chevron standard of review.

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.

Pages 29–30 of the Reid bill 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.

To be clear: Senator Reid has a strong record on Second Amendment issues. When he was Minority Leader, he provided essential leadership for passage of the Protection of Lawful Commerce in Arms Act. I am certain that there was no intent by Senator Reid to do anything in the health bill to harm Second Amendment rights.

However, the bill would in fact make it easy for a HHS Secretary to write “wellness” program regulations which penalize some or all gun owners. I think it is politically unlikely that HHS Secretary Sebelius would immediately write such regulations. But since the Reid bill is intended to make permanent changes in American health care, no-one can predict what a HHS Secretary might do in 10 or 30 years, when political calculations might be different.

Solving the problem would be easy. Since Senator Reid has no intention of harming Second Amendment rights (or, presumably, of harming anything else in the Bill of Rights), there would appear to be little reason not to explicitly say so in the bill. 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.”

Undoubtedly a professional legislative drafter could write a better version of above. Explicit rights protection would prevent a future HHS Secretary from misusing the law in a way contrary to the intent of the sponsor, and contrary to what every advocate for the bill claims to want. At the same time, explicit rights protection would limit not one iota of what the bill’s advocates say they want to accomplish. Accordingly, one might expect that a rights protection amendment with strong and broad language would earn unanimous support if it were offered on the Senate floor.