Of the three memorandums that the President released January 16th, one of them seeks to prohibit the exercise of 2nd amendment rights of those who have, or are exposed to, yet to be determined conditions and other correlative (or not) personal data. Gun control is being linked to a vast set of personal information.
The memorandum, Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System(NICS), on its face, seeks to strengthen the NICS data with better, more efficient data consolidation. Though some prohibitions, such as certain criminal convictions and mental conditions, have already been determined relevant via legislation, the kicker here is that the Department of Justice and the agencies involved are being given latitude, outside of the legislative process, to find new ones.
The agencies that will make up the NICS Consultation and Coordination Working Group – the group that will determine which relevant records will be provided, give some clues where these records might be found – portable healthcare databases, disability, Medicare/Medicaid, Veteran Affairs and transportation records to name a few. A perusal of President Obama’s 23 executive action points in conjunction with this memorandum can provide more insight to what these new ‘relevancies’ might be and how they might effect 2nd amendment rights.
16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.
This action point makes access to guns, rather than just gun registration information available to the NICS through the portable healthcare databases. The potential here is that gun ownership could become limited based on who might be able to get a hold of the gun rather than who owns the gun.
17. Release a letter to health-care providers clarifying that no federal law prohibits them from reporting threats of violence to law-enforcement authorities.
This one is a reminder to that there is no expectation of patient privacy and that even non-serious threats or simply overblown statements of disgruntlement may end up on your medical record, hence your NICS record.
5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.
13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.
A full background check isn’t necessary to determine that a person has just been convicted of a crime that prohibits them from owning a gun any longer. In fact, that record wouldn’t appear in the NICS for some time after the conviction. What these two action points do is introduce new ways, in the name of prevention, to take guns away from law abiding citizens.
Gun seizures are perfectly legal under many circumstances that don’t involve a crime or even misuse of a gun. Though these laws vary from state to state, they commonly include guns being seized for safe keeping from accident scenes or on account of perceived threats resulting in restraining orders. Many people don’t understand their rights against unreasonable search and seizure and will permit officers of the law into their homes without warrants. When you give permission to an officer, a search warrant isn’t necessary. In addition, many states allow search and seizure at the officers discretion with the reasonableness determined in hindsight.
If a NICS full background check is required prior to returning a gun then, due to the new ‘relevancies’, some rightful owners will not get their guns back. I predict that these new presidential directives will increase gun seizure activity and the number of guns not returned to their rightful owners.
What President Obama did on Wednesday concerning gun violence is fully within his authority as he can direct the federal agencies that report to him. He changed no gun laws with this memorandum, but that doesn’t mean that no gun laws will change. And these executive actions and orders gives us some clues what to watch for. Keep your eyes on the new information that will be contained in the NICS database.