Denver Bar Association
June 2011
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Gun Ownership and Health Reform Under an X-ray: Their Time Has Come

by Marshall Snider

 

I


n Kennesaw, Ga., gun ownership is not only a right, it is a legal requirement. In 1982 the City Council of this then-rural town of 5,000 citizens passed an ordinance requiring every head of household to maintain a firearm and ammunition. The idea was to prevent crime; in theory, no one would want to burglarize a home that with certainty was occupied by a gun-toting head of household.

In an odd twist, the ACLU challenged this ordinance in federal court. Typically, it is the conservative right that challenges laws by which government intrudes on our right to make personal decisions. But whether government involvement in our lives is good or bad depends on whose ideology is being gored (for example, many conservatives who think government should leave us alone have no problem with laws that tell us who we can marry).

The federal court in Georgia upheld the Kennesaw mandatory gun law. The court did, however, require an amendment to the ordinance to exempt conscientious objectors. Criminals, the mentally ill, and people who could not afford a firearm were already excused from the law’s requirements (it must have been a relief to the citizens of Kennesaw that their elected representatives did not require criminals to own a firearm).

Although home burglaries did decline in the two years after the law was passed, the gun ownership law was largely symbolic. Prior to the enactment of this ordinance, an estimated 95 percent of Kennesaw residents already owned a firearm. The gun ownership requirement is still on the books but probably not a factor in crime reduction. There is no penalty for violating this ordinance, no one has ever been prosecuted for not owning a gun, and only 50 percent of the current population of 35,000 own a firearm.

But what, I hear you ask, does any of this have to do with me, a Colorado citizen who can own a firearm or not, as I wish? The answer is obvious. If citizens of Kennesaw can be required to purchase a commercial product such as a gun, it follows that citizens of Colorado can be required to purchase a commercial product, such as health insurance. The precedent is clear and controlling.

We already have case law in Colorado to support the mandatory health insurance requirement contained in last year’s Affordable Care Act (the so-called health care reform law that really is not about health care reform; it is about health insurance reform). In 1970, the Colorado Supreme Court ruled that a mandatory motorcycle helmet law was constitutional because it bore a reasonable relationship to the public health, safety, and welfare (that statute is no longer on the books, but the Supreme Court ruling is still viable law). We also now require Colorado motor vehicle drivers to buy liability insurance. It can thus be seen that laws requiring citizens to purchase commercial products are constitutional.

Of course, citizens can opt out of the motorcycle helmet and liability insurance purchase requirements by choosing not to ride a motorcycle or drive a car. The health insurance reform law does not give individuals that option—you can’t agree to opt out of health. That is why the Kennesaw law is so important. It, too, had no opt-out provision, unless you were a criminal, mentally ill, a conscientious objector, or poor. By making these same accommodations to the Affordable Care Act, that law also should withstand constitutional scrutiny. All Congress has to do is amend the law to exempt criminals, the mentally ill, and the poor from the requirement to buy health insurance—they probably don’t need it, anyway. D


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