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ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More

How Obamacare And The Healthcare Mandate Could Open The Door To Gun Grab. This is Huge! Wake Up!

obamacare-could-open-door-to-gun-grab

Scotus’ Healthcare Decision: Implications of “Individual Mandate” for Future Firearms Regulation

On Thursday, June 28, 2012, the United States Supreme Court (“Supreme Court”) handed down a landmark decision1 affirming the defining piece of legislation for the Obama Administration, literally reshaping the face of health care by 2014, in deciding whether what has been commonly referred to as “Obama-Care” passes constitutional muster.

While firearms and health care are rooted in vastly differently industries, this decision may someday be used as authority in considering the constitutionality of firearms laws. This may appear overreaching in analysis given the recent history of the Supreme Court’s decisional law handed down on firearms.

In fact, the Supreme Court’s Heller (2008)2 and City of Chicago (2010)3 cases are recent history, and developed the constitutional dimensions of gun law more than all other periods of US history combined. These cases stand for three key and distinct propositions of law:

  • The Second Amendment right to keep and bear arms is an individual right of citizens, not a collective right of the military.
  • The Second Amendment prohibits a local or state branch of government from banning the entire class of firearms, handguns, which individuals prefer for self-defense.
  • The Second Amendment applies to individuals in the states through the Due Process Clause of the Fourteenth Amendment.

To understand this legal issue and overlap between health care and firearms, some historical perspective is provided on both; when the health care legislation passed in 2010, some constitutionalists’ expressed grave concern with the “individual mandate”. This provision of Obama-Care requires individuals over a certain income thresholds to purchase health insurance–whether they want it or not–or pay an income “tax”.

The reason the alarm bell sounded was the (unsaid but presupposed) legal basis for the “individual mandate”: Congress’ authority under the Commerce Clause of the United States Constitution. If the “individual mandate” was constitutional, it eviscerated individual states’ rights. There would be no limit on Congress’ authority.

Indeed, when the constitutional challenges reached the Supreme Court, the central legal theory advanced by the Government was that Congress could mandate individuals purchase health insurance or pay a tax under the Commerce Clause.

Furthermore, the Supreme Court, in reviewing legislation under the Commerce Clause, has long taken an expansive view of Congress’ authority to regulate anything that moves within interstate commerce (across state lines), as opposed to purely intrastate commerce (within state lines). Very few aspects of commerce, if closely studied, are merely intrastate in dimension.

Thus, the (apparent) shared nexus between firearms and healthcare is the Commerce Clause. The Commerce Clause is a key way Congress has been regulating firearms (such as the Gun Control Act of 1968) for decades. And most firearms move in interstate commerce.

As the logic (and corollary concern) goes, if Congress can reach to and direct an individual, who is in no way engaged in interstate commerce, and require him/her to purchase health care insurance or pay an portion of income as a “tax” for failure to do so, what fate would firearms face with constitutional review by the Supreme Court with restrictive legislation made at the whim of Congress in the future.

Would it be affirmed with the health care decision as authority? If so, Americans could face a more onerous variant of the Assault Weapons Ban (1994 to 2004) in the future and/or have Congress pre-empt the field and abrogate state and local laws all under the Commerce Clause without limitation?

To be sure, gun advocates won some ground with the health care decision: The Supreme Court synthesized the Government’s (fatally flawed) reasoning to reject its Commerce Clause position for authority for the “individual mandate”, as follows: “The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’”

Therefore, it would be incongruous for Congress to now pass legislation to solely occupy (or preempt) the firearms’ field and regulate all aspects of firearms under the Commerce Clause. More critically, there are outer-limits on what Congress could do if it did so under the guise of the Commerce Clause. This inferentially supports the notion if Congress takes any such course, it would run afoul of the Second Amendment at some juncture.

However, the Supreme Court upheld the “individual mandate” under Congress’ enumerated power to “lay and collect Taxes.” Art. I, § 8, el. 1. While taxes are not anything new, some of the comparisons drawn by the Supreme Court to allow this health-care precedent to stand under the legal nature of a “tax” may be used to support legal positions that retreat from McDonald and City of Chicago Cases in the future.

How so?

In the health-care decision, the Supreme Court recounted it has upheld as constitutional regulatory matters, or “taxes”, such as a “taxes” on sawed-off shotguns under the National Firearms Act of 1934 (“the NFA”). The Supreme Court compared this “tax” to the controversial taxes by relying on the 1937, Sonzinsky v. United States, 300 U.S. 506, 513 (1937) decision. This case centrally focuses on the criminal component of tax evasion for not paying the $200 registration tax on a short-shotgun as required, beginning with the NFA in 1934.

For this reason, as the legal reasoning of the Supreme Court goes, the “individual mandate” of the health care act aims to induce the purchase of health insurance or pay a “tax”, it does not fail constitutional scrutiny: it does not attach negative legal consequences to not buying health insurance, beyond requiring payment to the IRS. Likewise, legislative history suggests this was the basis for the NFA, a tax to discourage individuals from having these firearms.

The incongruity and uncertainty in the future lies in the fact that this “tax” on shotguns under the NFA, as amended in subsequent years, has extensive criminal provisions for all sort of violations of the NFA, other than the non-payment of “tax”, many of said crimes appearing to be strict liability without a mens rea (criminal mindset) component.

Ultimately, the distinctions between “tax” to regulate sawed-off shotguns versus “interstate commerce” regulation and “tax” the consequences of the “individual mandate” verus “interstate commerce” regulation may be tenuous or theoretical. When and if this case touches firearms law, the importance and application is unknown.

Therefore, the point to this blog, other than explaining the rather technical legal basis upon which the “individual mandate” was affirmed by the Supreme Court, is to call upon Americans to be involved in the participatory government and read about, understand, and be involved with what is going on in the local, state and federal branches of government.

This will ensure the U.S. Constitution and the branches of government it restrains and a balance continues to maintain the United States as a free Nation and envy of the world.

If this blog post has helped you understand the health care decision, the authority of the Congress to lay taxes, its limits under the commerce clause, and how all of this may tie to the Second Amendment, then it has met its educational objective.

This blog post is written by attorney Bryan L. Ciyou, Ciyou & Dixon, P.C., Indianapolis, Indiana. It is not a solicitation for legal representation, nor for practice outside of the area any of its attorneys are admitted to practice.


  1. There were multiple cases consolidated and decided by this decision.
  2. District of Columbia v. Heller, 554 U.S. 570 (2008).
  3. McDonald v. City of Chicago, 130 S.Ct. 3020 (2010).

2 comments

  1. […] be guest lecturer at the 2nd Amendment Patriots meeting, lecturing on Gun Laws By State and how the new healthcare legislation opens the door for a gun grab. This meeting is open to the public. South Bend, Indiana at Kodiak Firing Range & Training […]

    Pingback by Upcoming Event – Bryan Ciyou – 7/31/2012 « Gun Laws By State on July 26, 2012 at 11:40 pm

  2. Hi Bryan

    A further threat is more directly related to health care. The Feds have tried in the past, and the Obama admin is now again asking the CDC and NIH to study the pubic health affect of guns on communities. You can already guess the results will show a profound health cost that guns have on communities, even though evidence is to the contrary.

    Once they have “established” this connection between public health and firearms, expect a “health tax” on firearms and equipment. Sure you can have that gun or any gun, but you will be required to pay an annual tax on each one you own. And we can expect that tax to be confiscatory! How about a health tax of $10,000 per gun?

    Comment by Ron Weiss on August 2, 2012 at 10:54 am

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FIND GUN LAWS BY STATE

Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More