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First Amendment protects pediatricians’ right to ask about gun safety

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Florida pediatricians had a good day in court last month when the U.S. Court of Appeals for the 11th Circuit struck down on First Amendment grounds a statute that prohibited them from addressing gun safety with parents.

The battle over a pediatrician’s right to freely practice medicine and protect the safety of children was one that never should have occurred, but Florida legislators thought it necessary to protect gun rights when, in fact, gun rights were never threatened.

The legal conflict began in 2011, when several pediatricians and medical associations challenged the statute in federal court. In 2012, the court held the law was unconstitutional because it infringed on free speech. After a three-judge panel of the 11th Circuit reversed the trial court’s decision in 2014, the pediatricians asked the court’s entire panel of 11 judges to hear the case. The full panel affirmed the trial court’s decision, meaning pediatricians may resume talking about gun safety.

To pediatricians, asking about guns is no different than asking about chemicals, electrical outlets or swimming pools. They’re all a source of danger for kids.

Pediatricians inquire about guns because some parents don’t understand the risk and lack knowledge about safe storage. There’s evidence to support the pediatricians’ concerns. The Children’s Defense Fund reported that 883 children and teens nationwide died in 2010 from gun suicide and accidental shootings; 143 were 14 and under. From 2000 through 2010, 384 Florida children died from gun suicide and 54 from accidental shootings.

What was striking about the law is that it was based on six anecdotal stories presented by legislators. Legislators testified about their constituents being subjected to unwelcome questions or comments about gun ownership. One legislator testified that a mother was separated from her children while medical personnel interrogated them about guns.

Significantly, the court record reflected, “There was no other evidence, empirical or otherwise, presented to or cited by the Florida legislature” about harm suffered by gun owners.

Florida isn’t alone in trying to suppress physicians. In 2013 and 2015, Sen. Kris Jordan, R-Ostrander, introduced similar bills in Ohio that, fortunately, went nowhere. In January, state Sen. Bob Hall, R-Edgewood, introduced comparable legislation in Texas.

These efforts are misguided. Not everything that deals with guns touches on the Second Amendment.

The National Rifle Association disagrees. It views the pediatricians’ practice as an attack on guns and an invasion of privacy. Chris Cox, executive director for the NRA’s Institute for Legislative Action, lauded the first decision from the 11th Circuit. “Every gun owner in Florida and across the country is grateful for this common sense ruling. It is not a physician’s business whether his or her patient chooses to exercise their fundamental, individual right to own a firearm.”

Cox is right—to an extent. It’s not a physician’s business whether a parent owns a gun, but it is a physician’s concern that parents be knowledgeable about the dangers some take for granted.

Children who shoot themselves and others do so only because an adult left a loaded gun where it could be easily found.

The reality is, gun rights were never at risk in Florida. Patients were always free to refuse to answer questions about guns. Moreover, as the full panel of the 11th Circuit noted, the Second Amendment “does not preclude questions about, commentary on, or criticism for the exercise of that right.”

Ironically, Florida passed a statute in 1989 that made it a misdemeanor to fail to secure guns that are obtained by minors without supervision. In passing the statute, the legislature recognized that “a tragically large number of Florida children have been accidentally killed or seriously injured by negligently stored firearms” and “that placing firearms within the reach or easy access of children is irresponsible.”  If anything, the pediatricians were endeavoring to meet the legislature’s public safety concerns articulated years prior.

The Florida statute illustrates how a legislature and the NRA can lose sight of the fact that hundreds of kids who are killed annually when guns are left out in the open.

Gun rights aren’t at risk. The lives of children are, and those lives are all the pediatricians care about.

 



Also published on Medium.

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Discussion

  1. Bruce  March 27, 2017

    Another good article! Extremist views make me extremely anxious…

    (reply)
  2. Bill Lyons  March 27, 2017

    What kind of crazy universe we live in when some individuals and an organization like the NRA cares more about the right to own guns than the right to life and safety for children! All people have a right and duty to protect children when they feel a situation may be dangerous. This is why individuals are compelled to make authorities aware if there is potential child abuse or endangerment. The protection of children is not just the job of parents. Doctors, teachers, and others share a role.

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  3. Dan  March 28, 2017

    Another case of NRA paranoia

    (reply)
    • jdaurora@behallaw.com  March 28, 2017

      I agree. From what I read, most gun owners are reasonable. It’s the NRA leadership that has lost its way.

      (reply)

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