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Got a Gun? Florida Physicians Allowed to Ask About Firearms, Again.

By Christopher Coble, Esq. on February 17, 2017 | Last updated on March 21, 2019

Your doctor will want to ask a lot of questions in order to get a complete picture of your medical history and potential health risks. Any family history of heart disease? Do you smoke or drink? Any allergies to medication? Do you have any guns in the house?

That last one, although recommended by the American Medical Association, ruffled a few patients' feathers, so Florida legislators sprang into action, passing the Firearms Owners' Privacy Act in 2011, prohibiting doctors from asking about gun ownership. But a federal appeals court overturned the law, finding it violated physicians' First Amendment Rights.

Blank Checks and Balances

Florida criminal code § 790.338(2) directs doctors to "refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home" unless he or she in "good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others." Violating the statute would "constitute grounds for disciplinary action" by Florida's Board of Medicine.

While a three-judge panel upheld the law in 2014, all 11 Eleventh Circuit Court of Appeals judges disagreed on appeal, ruling 10-1 that "Florida does not have carte blanche to restrict the speech of doctors and medical professionals on a certain subject without satisfying the demands of heightened scrutiny." Finding no evidence that doctors were infringing on the second amendment rights of their patients by asking them about guns, the court held that the state had not met the burden of heightened scrutiny.

Guns and Medicine

Studies have shown that people who have easy access to firearms are almost twice as likely to be killed and three times likelier to commit suicide than those without, and people that actually carry a gun are more than four times as likely to be shot and killed. Given this background, it seems only natural that doctors would always have a good faith belief that gun access or ownership would be relevant to a patient's safety.

Yet the court did not have to rule that any inquiry into guns would be permissible, even under the statute, finding instead that the statute itself was impermissible:

Even if there were some possible conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients, the [provisions] do "not advance [the legislative goals] in a permissible way." The record here demonstrates that some patients do not object to questions and advice about firearms and firearm safety, and some even express gratitude for their doctors' discussion of the topic ... Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership, but it "may not burden the speech of others in order to tilt public debate in a preferred direction."

Another provision of the law, prohibiting doctors from discriminating against patients with guns, was upheld.

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