Federal judge permanently blocks Florida law restricting doctors from asking patients about guns

[JURIST] A judge for the US District Court for the Southern District of Florida [official website] on Friday permanently enjoined [order, PDF] a Florida law that barred doctors from discussing the dangers of gun ownership with patients. Judge Marcia Cooke held that the Firearm Owners' Privacy Act (FOPA) [text] violates doctors' First Amendment rights because it is so vague that it fails to provide them with clear guidance on how to abide by it. In addition, the judge reasoned that the act "did not constitute a permissible regulation of professional speech or occupational conduct that imposed a mere incidental burden on speech" because it prohibits truthful and non-misleading speech within the doctors' profession. The judge rejected that the state's argument that the act is necessary to protect its citizens' fundamental right to keep and bear arms:

The Firearm Owners' Privacy Act, however, simply does not interfere with the right to keep and bear arms. The State's arguments rest on a legislative illusion. The Second Amendment right to keep and bear arms refers to the right to "retain," "to have in custody," "to hold," and "to carry" weapons, including firearms. The law at issue here does not affect nor interfere with a patient's right to continue to own, possess, or use firearms. Protecting the right to keep and bear arms is irrelevant to this law; therefore, I do not find that it is a legitimate or compelling interest for it.
The judge also found that the risk of losing one's medical license and paying up to a $10,000 fine for "asking questions concerning the ownership of a firearm" or "unnecessarily harassing a patient about firearm ownership" has a chilling effect on doctors' speech, leading them to engage in self-censoring. The president of the Florida Chapter of the American Academy of Pediatrics/Florida Pediatric Society (FCAAP/FPS) [advocacy website] Mobeen Rathore welcomed [statement, PDF] Friday's ruling, thanking the court for recognizing the need of an open dialogue between doctors and patients.

Cooke had issued a preliminary injunction [JURIST report] in the case in September, reasoning the same way as she did on Friday. She found that the act in no way affects the primary constitutional right to keep and bear arms. Gun control laws have been much debated in the past. In July 2010, the Chicago City Council [official website] unanimously approved a new gun control law that bans gun shops in the city 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 ordinance infringes on their constitutional rights. 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. Two years earlier, the Supreme Court 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.

 

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