A tug of war between the First Amendment protection of free speech and the Second Amendment right to bear arms will play out before the 11th U.S. Circuit Court of Appeals in Atlanta Tuesday.
Known as Docs vs. Glocks, the case is a challenge to a Florida law that says doctors may not ask patients or the parents of children they treat about guns in the home.
While Tuesday’s legal debate involves only a law in Florida, other gun-friendly states, like Georgia, are watching closely to see whether the state can successfully defend its statute.
“It would send a signal to other states to start creating similar laws,” University of Georgia law professor Sonja West said about the outcome should the federal appeals court uphold the law. “That could have consequences nationwide.”
The argument comes amid an intensifying nationwide debate about guns and whether tighter restrictions would make the world safer. Would restrictions have prevented recent mass shootings? Would they save children from accidentally shooting themselves with unsecured guns? Or would they served to erode the Second Amendment guarantee to bear arms?
The Florida Firearms Owners’ Privacy Act was adopted, sponsors said, to protect patients from being harassed by doctors opposed to firearms. During debate in 2011, one Florida legislator said his daughter’s pediatrician asked him to remove his gun from his home. Another lawmaker said a doctor refused to treat a constituent’s child because of guns in the house. Yet another Florida legislator recounted a complaint from a constituent that his health care provider falsely told him that disclosing firearm ownership was a Medicaid requirement.
The Florida law, which has yet to be enforced because of the legal challenge, says doctors may not ask a patient about guns in the home unless the physician, “in good faith,” believes it’s relevant to a patient’s care or the safety of others.
The National Rifle Association did not respond to several requests for comment for this article. But the NRA’s Institute for Legislative Action wrote to its members last summer, “Physicians interrogating and lecturing parents and children about guns is not about gun safety. It is a political agenda to ban guns. Parents do not take their children to physicians for a political lecture against the ownership of firearms, they go there for medical care.”
Three doctors, plus the Florida Pediatric Society, the Florida Academy of Family Physicians and the Brady Campaign to Prevent Gun Violence, filed the lawsuit against Florida.
Their suit asserts that questions about guns are no different from a doctor asking about illegal drug use, patients’ drinking habits or whether child safety seats are used. The suit said the Florida law restricts physicians’ free speech rights and had a “chilling effect on confidential life-saving discussions” between doctors and patients.
“Physicians see the law as charting a narrow and potentially perilous path that they must tread in treating patients because a misstep risks discipline or the loss of their medical license should they offend the sensitivities of gun-owning patients who may harbor different views of the relevance of guns in their home to their medical care,” said Georgia State University law professor Lynn Hogue.
U.S. District Judge Marcia Cooke in Florida agreed with that position and in 2012 threw out the law. The judge ruled the law violated doctors’ rights to speak freely and it did not serve a “compelling government interest” to ban physicians from discussing guns with patients.
“A doctor asking questions and talking about the importance of storing firearms safely doesn’t in any way interfere with someone’s Second Amendment rights,” said Adam Skaggs, senior counsel for Everytown for Gun Safety, which filed a brief in the case. “Nothing in this law prevents anyone from buying, owning or securing firearms. It wouldn’t take a gun away from a single person.”
But gun rights advocates argued that doctors exert substantial influence on their patients and that patients might feel pressured to get rid of their firearms or not buy them at all if a physician broaches the subject.
Federal appeals court decides
Last year, a three-judge panel at the 11th U.S. Circuit Court of Appeals issued three separate rulings on the law, each time voting 2-1 against the doctors. The two judges who found in favor of Florida’s law said the statute regulated the practice of medicine and was not a restriction on speech.
“It is not a physician’s business whether his or her patient chooses to exercise their fundamental, individual right to own a firearm,” the gun rights organization said in a news release last summer after one of the court of appeals decisions.
The judge who dissented said the issues that led to the law seemed to be “nothing more than a disagreement between the doctor, who perceived the gun-related information to be relevant to the patient’s well-being, and the patient, who perceived the information to be part of an unwelcome political attack.”
Now all 11 judges on the 11th U.S. Circuit Court of Appeals, which governs Florida, will decide.
“I think the (three-judge) panel decision was quite wrong,” said Eugene Volokh, a law professor at University of California in Los Angeles. “And I think there’s no real conflict between the First and Second Amendments here. The Second Amendment bars the government from banning guns, but it doesn’t justify the government suppressing doctors’ speech that’s critical of gun ownership or that asks about gun ownership.”
Volokh said doctors aren’t taking away or threatening to take away patients’ guns.
“They are merely talking to their patients about injury and guns,” Volokh wrote in a recent article. “Even if the doctor’s speech is mistaken … ‘harassing’ or not sufficiently ‘relevant,’ no amount of my doctor’s speech will cause my gun to disappear.”
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