When a physician asks a patient if he or she owns firearms, is that doctor violating the patient’s Second Amendment rights?
In July 2010, when Ocala pediatrician Chris Okonkwo asked Amber Ullman if she had guns at home, she reportedly contacted her Florida legislator to tell him about this “assault” on her Second Amendment right to bear arms.
This incident, along with several related anecdotes of doctor-patient disagreements, served as a catalyst for the Florida Firearms Owner’s Privacy Act, which passed the state legislature in April of 2011 and was signed into law by Gov. Rick Scott.
Drafted with the help of the National Rifle Association, the law states physicians “shall respect a patient’s right to privacy and should refrain from making a written inquiry or asking questions” about whether a patient owns a firearm.
Other attempts by the NRA to curtail doctor-patient speech about firearms occurred in other states including Alabama, Minnesota, North Carolina, Oklahoma, Tennessee and West Virginia, all of which failed to pass their respective state legislatures. Earlier this year, Kansas and Missouri considered similar legislation.
But these states are likely waiting to move forward with their legislation until the courts decide whether Florida’s law is constitutional. In June 2012, a federal judge in Miami permanently enjoined the law, preventing its enforcement on the grounds that it violated the First Amendment freedom of speech rights of doctors.
Now the law awaits a decision by the 11th U.S. Circuit Court of Appeals in Atlanta.
The supposed justification for the law — that posing a question about whether someone owns a firearm violates his or her Second Amendment rights — falls short for various reasons.
First, it is absolutely absurd to justify restricting the ability of doctors to ask potentially lifesaving questions in order to protect the sensibilities of patients who might feel uncomfortable with such questions.
Particularly when it comes to pediatric care, evidence abounds that improperly stored firearms in the home can impair the safety and can threaten the lives of children. A study by the Children’s Defense Fund found more than 116,000 children and teenagers were killed by guns between 1979 and 2009.
An article in the conservative-leaning Wall Street Journal even pointed out accidental gun deaths among children have “grown worse since 1999.”
Second, there is simply no way a doctor asking questions about firearms can abridge someone’s right to bear arms. When patients leave the doctor’s office after being questioned and counseled about firearm ownership, their guns will still be there waiting for them when they get home.
And even if patients feel as though they have been harassed by a doctor asking these types of questions — the Second Amendment — or any amendment for that matter, does not protect us from feeling uncomfortable or offended.
Furthermore, the Bill of Rights was written to protect us from interference by the government, not from private individuals like doctors.
Finally, there are clear First Amendment interests at stake in this case because the government is telling doctors they cannot speak to patients about firearms.
The constitutional protection of free speech, at its core, is about the discussion of important public issues, the discovery of truth and the ability of people to find self-fulfillment.
No one can deny the speech regulated under this law fits all of the above categories.
When the stakes surrounding whether doctors can counsel patients about firearms safety involve matters of life and death, there is no compelling reason why such speech should be curtailed.
The 11th U.S. Circuit Court of Appeals should strike down Florida’s law and set a precedent that doctor-patient speech of this manner must be protected.
Justin Hayes is pursuing a master’s degree in political communication. His column appears on Wednesdays. You can contact him via opinions@alligator.org.
