A New Gun Law in Florida? Will Wonders Ever Cease?

I was asked to write something ‘happy’ for today so here goes.  The Gunshine State’s Senate has actually passed a gun law which regulates guns. Now you might think this is no big deal because the new law, as written (but not yet approved) puts no new rules on the ownership of black guns (not a racial term, it’s what we call assault rifles in the gun business) but several parts of the law are significant in terms of the potential impact on violence caused by guns.

florida              More important, this is the first time since the last Ice Age that Florida has been in the forefront of what appears to be a national movement to tighten at least some gun restrictions, which is a complete turnaround since this state has always been a laboratory to test laws which will make it easier for everyone to exercise their 2nd-Amendment ‘rights.’ Florida was an early state to move from ‘may’ issue of concealed-carry permits to ‘shall’ issue; it was also the first state to pass a ‘stand your ground’ law, and it tried, ultimately unsuccessfully, to criminalize doctors who talked to patients about guns.

Not only does Florida lead the nation in developing pro-gun laws, it probably is also the state whose legislators file some of the dumbest and craziest gun laws that simply can’t be true. But they are true.  I’m talking about a bill drafted by State Senator Greg Steube which makes the owner of a public space liable for damages if he declares his property to be a ‘gun free zone,’ and then a customer is shot because he couldn’t respond to an armed threat with his gun.

This law assumes, of course, that if an armed customer was confronted by a threat he would be able to protect himself from getting shot by dint of the fact that he had a gun on his person. Well, since we have a President who pretends to believe the same thing, why should we be surprised when a State Senator in Florida believes the same thing? The good news is that Steube’s bill is still sitting in the statehouse trash somewhere, but the fact that he could even dream up such a stupid idea gives you a hint as to why I am surprised that Florida may actually pass any kind of gun-control measure at all.

The new Florida statute contains language which increases the minimum age for long gun purchases from 18 to 21. It also extends the state’s three-day waiting period for handgun purchases to all guns, bump stocks are banned, and in a compromise, it allows school districts to arm certain individuals who are present in schools but does not authorize arming teachers because Governor Scott made it clear that he would oppose any such move.

Gun-control activists in Florida and elsewhere wanted much more; a ban on assault weapons as a start. But I’m not sure that this bill should be seen by my gun violence prevention (GVP) friends as a loss, and I’ll tell you why.

First and most important, if Florida legislators are willing to split away from the NRA on even the slightest grounds, this makes it easier for office-holders in states that have not been as subservient to America’s first civil-rights organization to do the same thing or more. Second and perhaps equally important is that the debate in Tallahassee on an assault weapons ban was notable for the fact that opponents of the measure didn’t try to convince anyone that an AR-15 was no different from any other ‘modern sporting rifle.’ That cockamamie idea, right out of the gun industry’s playbook, was decidedly left unsaid.

We will surely see more state-level gun debates in the weeks ahead, and I’m willing to bet that in some other reluctant state legislature somebody will stand up and say, “If they could pass a gun-control bill in Florida, why can’t we pass one here?”  That’s a question are which has never been asked before.

 

 

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The 11th Circuit Creates A Fiction To Justify Gagging Florida Doctors Who Talk About Guns.

Nobody in the GVP or medical communities (except Rand Paul) is happy with the decision by the 11th Circuit to continue upholding the Docs-Glock statute enacted in the Gunshine State.  But there was a comment in the latest decision which may, in the long run, make the argument in support of the law null and void. But before I explain why I think there may be a silver lining, I should spend a few words discussing where the case stands right now.

docs versus glocks              As you probably know, the original law was enacted in 2011 and similar statutes have been introduced but not voted in at least 12 other states.  Basically the law prohibits physicians from asking patients about gun ownership unless the physician believes that access to guns poses an immediate health risk. But by asking physicians to limit inquiries about any matter unless they have already decided that such inquiries might reveal a medical risk is to stand the entire methodology for assessing patient health on its head.

The pro-gun bunch has been trying to push medicine out of the gun debate ever since physicians first began talking about guns as risk to health.  The gun industry continues to pretend that we should ignore endless studies which show that gun ownership is linked to increases in both homicide and suicide rates; in fact, they promote the fiction that guns are a positive social element because it’s an armed citizenry that protects us from violence and crime.

Much of the latest decision upholding the Florida law simply repeats the rather dubious claims about 2nd Amendment rights that littered the original 11th Circuit majority decision handed down last year.  In that decision, the two-to-one majority hearing the case decided that asking a patient whether he or she owned a gun put the physician in the position of deciding whether that particular patient should have guns at all; hence, a restriction on the Constitutional right to own a gun.

This seems to me and to most scholars who have examined the decision to be a stretch.  And not just a little bit.  After all, Florida law doesn’t prohibit doctors from asking patients if they engage in sex, even though sexual activity is protected under the Constitutional rights to privacy that were enunciated in Roe versus Wade. But the reason that the doctor’s 1st Amendment right to ask any and all questions is trumped by the 2nd Amendment is really based on the fact that “the balance of power between doctor and patient will often make a patient feel as if he has no choice but to listen and answer a doctor’s questions.” Hence the 11th Circuit is protecting the patient who otherwise might feel vulnerable or threatened in asserting his 2nd Amendment rights.

Judge Gerald Tojflat (who wrote the majority decision) was fresh out of law school in 1963 when the Nobel prize-winning economist Kenneth Arrow published a paper in which he claimed that health care could not be understood as just another form of market economics because of the special relationship that existed between the seller (doctor) and purchaser (patient) of health products, procedures and advice.  Basically Arrow argued that patients could not exercise market decisions when choosing a doctor because of the physician’s superior knowledge and special skills.

That was 1963.  This is almost 2016. I don’t know which planet Judge Gerald Tjoflat inhabits, but he’s simply out of step with modern times. The idea that the average patient walks into a doctor’s office believing that he can’t or won’t speak up at every possible moment during a medical exam may have been typical of the doctor-patient relationship when Tjoflat was just starting his legal career, but it sure as hell isn’t true today.

Between the internet, alternative medicine, patient-centered care, patient’s bill of rights, and HIPAA, Judge Tjoflat’s notion that today’s patient feels vulnerable and helpless in relation to his physician is a relic of the distant past.  But he also probably believes that guns protect us from crime.