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Whiskey Tango Florida

September 19, 2011

Florida’s gun laws were in the news again last week, and despite my failure to open my various small arms Google alerts at all this month, they somehow caught my attention. My legal training is limited to a single day of Con Law in undergrad, but I find these fights over gun rights vs gun control fascinating and often absurd, so let’s have a look.

I have no idea where this came from, but I can't stop laughing.

First up is a recent federal ruling preventing Florida from enforcing a new law that bans doctors from talking about gun safety with their patients. Apparently some doctors refused to provide service to some patients who refused to disclose whether they owned firearms. Enter legislation! Per The Miami Herald:

The firearm law didn’t prohibit doctors outright from asking about guns; it said they should refrain from inquiring about firearm ownership unless there’s a compelling medical reason.

Many doctors don’t ask about firearms, but some pediatricians do – in addition to inquiring about pools and drugs in the home. But some Medicaid patients in the Panhandle and in Ocala complained that the questions about guns infringed on their privacy, and they complained to lawmakers.

Originally, the legislation banned doctors from asking about firearms at all. But the National Rifle Association and the Florida Medical Association agreed on compromise legislation that said doctors “should” refrain from the line of questioning. The bill then passed the Legislature.

Pediatricians, though, continued to protest and then sued. They said the law was vague enough to expose doctors to nuisance complaints to the Department of Health.

Ostensibly, the state is just trying to protect firearm owners’ right to privacy, and they’re concerned about this information being recorded in patients’ charts. This is some of that absurdity I mentioned earlier, because:

a) there’s far more sensitive information in medical records than whether the patient owns a firearm, and health information is about as legally protected as information can be (hey there, HIPAA!), and

b) if they’re so concerned with consumer privacy writ large, why isn’t the state also preventing doctors from asking if patients about swimming pools? What if I don’t want to tell you, Doc? That’s my secret swimming pool. Where’s my Swimming Pool Owners’ Privacy Act, Florida?

There’s no reason that firearms owners should have any special protections from doctors’ oh-so-nosy questions, though it seems equally petty for doctors to deny service based on patients’ refusal to disclose that information. But maybe all those offended firearms owners could solve their own problems by being grown-ups and finding a new doctor, rather than turning it over for the making of political hay.

The very sensible U.S. District Judge Marcia Cooke understands that, and issued an injunction preventing the state from enforcing the Firearms Owners’ Privacy Act on First Amendment grounds:

The law burdens doctors’ “ability to deliver a firearm safety message to patients” and “patients’ freedom to receive information about firearm safety,” Judge Cooke concluded. “The State has attempted to inveigle this Court to cast this matter as a Second Amendment case,” the judge wrote. “Despite the State’s insistence that the right to ‘keep arms’ is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights.”

You’d think that would be obvious, and yet, here we are. The governor’s office has issued a statement that they intend to appeal the block. How unexpected! A Tea Party Republican fighting valiantly for Second Amendment-ish rights against the mean old federal judge in a presidential election year in a battleground state! This is obviously not a Second Amendment case, but politicians know that gun rights groups and their supporters can be mobilized through those magic words. They doesn’t even have to win the appeal to make the party look good in the eyes of 2A voters – at least they tried, right?

I have more sympathy for the other new law, which is intended to do away with the patchwork of gun laws across Florida (to contextualize that, most states preempt local gun laws). In quick summary, Florida passed a law in 1987 that banned local governments from creating and enforcing their own gun laws. This 1987 law was broadly ignored, both by local and state government. Then in 2000, South Miami passed a law requiring trigger locks for guns while stored in contravention of Florida state law. The NRA took South Miami to court for violating the 1987 law and won, making it clear that the 1987 law could be used to override local laws in practice as well as in theory.

Now, the state legislature has passed a new law that “imposes fines on counties and municipalities that do not do away with and stop enforcing their own firearms and ammunition ordinances by Oct. 1.” And I get why that’d be appealing. I live in DC, my favorite range is in Maryland, and the guns owned by my friends live in Virginia – I haven’t been shooting in months, because it’s too much hassle to work it all out (though yes, I could just rent, I know). Transporting firearms across jurisdictions is a headache. Most gun owners really do want to be responsible and law-abiding, and it’d be nice if there was some consistency so as to make their lives easier.

And hey, the state is just enforcing a law that’s already in place. Can’t blame them for that. If Floridians want to go back to their patchwork of ordinances, they can vote in a new legislature that might rewrite that 1987 law. And maybe that wouldn’t be a terrible idea; even though the Supreme Court has upheld the individual right to bear arms, it’s still an open question of what is considered reasonable restrictions on their carry and use. Miami (pop 400k) might want different gun laws than Perry (pop 7k).

Nevertheless, the timing of this effort is interesting for the same reasons as above. Basically, a Tea Party-backed Republican state government has chosen RIGHT NOW to demonstrate their dedication to gun rights over local authority or sensible public health measures like telling people about gun safety. I’d bet the party is either looking for NRA money for the coming elections, or they’re galvanizing their base for said elections, or both. That they’re doing it at the expense of public safety shouldn’t be surprising, but it is, dare I say it, a little absurd.

  1. Brian permalink
    September 19, 2011 6:40 pm

    It seems to me that there is no burden on a doctor’s delivering a “safety message” to patients (or guardians of patients). As I understand it, the law discourages asking about the presence of firearms, not the delivery of a message. Such a message could be routinely delivered upon every checkup, like “keep all medications, cleaners, etc. out of the reach of children” can be stated without first inquiring about the actual whereabouts of any of these products.

    Just like pharmacists cannot refuse to sell contraceptives on a case-by case basis, a doctor should not be able to refuse service because a question not directly related to health history is not answered.

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