Journal of Information & Privacy Law

Government Access to Medical Records During Gun Purchases and Due Process

By Erin Walgrave, Production Editor on Tuesday, October 15th, 2013
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Reading the supreme law of the land reveals one glaring point, that the United States “Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words.  This repeated clause promises “that before depriving a citizen of life, liberty or property, government must follow fair procedures.”  What this means in layman’s terms is that before your liberty can be denied, you must be granted certain procedures to contest that deprivation, a hearing in some capacity. While many laws have these processes literally outlined within them, not all do.  In that latter situation it is regrettably up to a citizen to recognize his own rights and defend them.  What is unfortunate, and what happens all too often, is that the government does not include these due process procedure rights within the legislation and the individual being deprived of his rights is therefore unaware of any recourse he may take even after a close reading of the law which served as the basis for the denial.

This was the factual framework for the ill-fated situation Mr. Nathan Rehlander endured in United States v. Rehlander. 666 F.3d 45 (1st 2012). In 2008 Mr. Rehlander lost his second amendment right to bear arms, a right which is supposed to be one that cannot “be withdrawn by government on a permanent and irrevocable basis without due process.”  Yet it was.  Further alarming about this situation is that not only was Mr. Rehlander’s Second Amendment constitutional right to own a gun abrogated, but so too was his implied constitutional right to privacy.  This deprivation occurred by way of Mr. Rehlander’s mental health records being forwarded to the National Instant Criminal Background Check System (“NICS”), without his prior notification or consent, per the Gun Control Act of 1968 (“Gun Act”) which led to the eventual gun deprivation.  Here, Mr. Rehlander was deprived of his right to bear arms and his right to privacy with no contest because no due process hearing was ever granted or suggested.  Two constitutional guarantees abolished with absolute disregard to the one and only command the Constitution makes twice.

This is not to say that there are never situations where it is appropriate to rescind a citizen’s constitutional right.  This is not to claim that everyone deserves a gun, or that there should be absolute protection of mental health records. There are justifiable reasons for denying gun ownership to certain individuals just as there are justifiable reasons for the publication of mental health records, but absolutes without exception are very rare in the law and that is why the Gun Act errs. The commonality between the legal deprivation of one’s right to bear arms and one’s implied right to privacy lies in termination not by absolute, automatic deprival, but only by just cause.  When a constitutional protection such as the right to own guns or the right to privacy is denied, due process must be used so as to ensure justice.

What makes this topic of utmost importance as of late, is the repeated mass-murders being committed by individuals with mental instabilities of some sort, the most recent being the massacre at the U.S. Naval Yard in D.C.  This begs the question; what will happen next?  Will privacy rights continue to be ignored in the interest of public safety from guns?  Will the invasions and deprivations of these rights without due process continue to remain a Constitutional contradiction?  Will the abrogation of these rights get worse in the wake of such horrible atrocities?  Only time will tell…

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