Assigned Reading: Health Bill and Gun Ownership
(FROM: The Volokh Conspiracy)
Glenn Beck loves to connect the dots, but sometimes I think he ends up stretching a little too far in his attempts to read the tea leaves of Team Obama’s strategy. That was my original take on this piece.
The story has spread into the MSM where–among others–the Washington Examiner is covering the story primarily from the angle of attempting to debunk Glenn Beck’s concerns. The Washington Examiner story ends with a quote from Igor Volsky at the Center for American Progress:
It is very clear they are misreading the bill. 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.
Not so fast, responds legal scholar Dave Kopel:
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.
Kopel goes on to point out that Senator Reid has generally been supportive of Second Amendment rights, and almost certainly doesn’t mean to restrict them. But, as is so often the case with expanding government powers, it doesn’t really matter.
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.
Of course, the bill could be edited to prevent this from happening, but the threat to gun ownership is just a special case of the general problem of government intrusion into our lives, and there’s no way to ameliorate that threat short of scrapping the entire attempt to use government to takeover health care.