Federal judge blocks Florida law restricting doctors from asking patients about firearms

[JURIST] A judge for the US District Court for the Southern District of Florida [official website] on Wednesday temporarily enjoined [ruling, PDF] a Florida law restricting what physicians can ask or say about firearms to their patients as violative of the doctors' First Amendment rights. Under the Firearm Owners' Privacy Act (FOPA) [text], violating doctors risk losing their medical license and up to a $10,000 fine for "asking questions concerning the ownership of a firearm" or "unnecessarily harassing a patient about firearm ownership." Judge Marcia Cooke rejected Florida's argument that the law was about protecting Second Amendment [text; JURIST news archive] rights:

This case concerns one of our Constitution's most precious rights—the freedom of speech. "Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment." Courts have also emphasized the importance of the free flow of truthful, non-misleading information within the doctor-patient relationship. The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. 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. The right to keep arms refers to the right to "retain," "to have in custody," and "to hold" weapons, including firearms. A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect nor interfere with the patient's right to continue to own, possess, or use firearms. The Act—directed at ensuring patients' privacy rights concerning firearm ownership—does not implicate rights that the Second Amendment protects.
The American Academy of Pediatrics (AAP) [advocacy website], also a party to the lawsuit to block the law, welcomed [press release, PDF] the ruling. FOPA took effect in June and is the first law of its kind in the US [AP report]. The temporary injunction seems likely to become permanent [Reuters report].

Gun control laws remain a contentious issue across the US. Previously, states took more or less restrictive approaches to gun control based on local state legislation. In June 2008, however, the US Supreme Court [official website] ruled in District of Columbia v. Heller [opinion, PDF; JURIST report] that the Second Amendment protects the right to possess a handgun for the purpose of self-defense, overturning the District of Columbia's restrictive firearms law. Two years later, in June 2010, the US Supreme Court ruled in McDonald v. Chicago [opinion; JURIST report] that the Second Amendment applies to states and municipalities as well as the federal government, thereby overturning Chicago's ban on handguns and raising considerable uncertainty about what amount of regulations of firearms was permissible. In July 2010, just four days after the Supreme Court's ruling in McDonald, the Chicago City Council [official website] unanimously approved a new gun control ordinance that bans gun shops in Chicago and prohibits gun owners from stepping outside their homes, including porches and garages, with a handgun. Shortly thereafter, a group of Chicago citizens, supported by both the National Rifle Association and the National Association of Firearm Retailers [advocacy websites], filed suit against the city [JURIST report] claiming the new gun control ordinance infringes on their constitutional rights.

 

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