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The Constitution does not allow the state to muzzle doctors who wish to inquire about gun safety.

Photo illustration by Slate. Photo by iStock.

In recent years, most states have been clever enough to dress up unconstitutional statutes in pretext that might just fool courts into affirming their legality. But apparently the Florida legislature did not get this memo, because in 2011, the state passed a law that did not really pretend to be anything other than what it was: a blatant act of censorship.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The 11th U.S. Circuit Court of Appeals, sitting en banc, struck down the bulk of Floridas Firearms Owners Privacy Act (FOPA) last Thursday in an emphatic and near-unanimous ruling. But the law, as well as the decision in Wollschlaeger v. Governor of Florida that has invalidated it, are worth examining at length because this fight is far from over. FOPA gagged doctors who wished to discuss gun safety with patients based on the contents and viewpoints of their speech. In defending it, pro-gun advocates have concocted a clash between the First and Second Amendments, hoping that the Second Amendment wins out. Just because they lost this battle does not mean they have given up on the broader war.

Some background: The sponsors of FOPA, frequently referred to as the docs vs. glocks bill, claimed they were responding to anecdotal evidence of Florida doctors talking to patients parents about gun safety in the home, which they felt constituted an egregious invasion of privacy. (You may remember one sponsor, Greg Evers, as the state senator who raffled off an AR-15.) In reality, the bill was peddled by the National Rifle Association, which donates significant sums to Floridas GOP state legislators and routinely requests favors in return. This particular gift was designed as a rebuke to the medical groupsincluding the American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physiciansthat encourage physicians to talk to parents about childproofing firearms. These groups and their members believe firearm safety education is critical, especially in a country with so many gun accidents involving children.

The NRA does not want physicians to talk to patients about firearm safety. It considers a mere question about gun ownership, as well as advice about childproofing guns, to be a privacy violation meant to advance a political agenda, according to the courts majority opinion. FOPA prohibits doctors from asking patients or their parents about guns in the home; recording the answer to such questions; harassing a patient about firearm ownership during an examination; and discriminating against patients on the basis of gun ownership.

In a lengthy ruling, the 11th Circuit struck down all these provisionsexcept the nondiscrimination ruleas a violation of the First Amendment. The issue of free speech protections for professional expression, particularly in the course of medical treatment, is notoriously thorny. Courts typically give the government more leeway to regulate speech issued in the course of professional conduct: For instance, states can, without infringing upon the First Amendment, ban harmful treatments that involve speech, like conversion therapy. But the court found that FOPA is a different beast: It takes direct aim at doctors speech on the basis of its content, one of the most insidious kinds of censorship.

Protecting the Second Amendment right of Floridians from private encumbrances may, as Florida claimed, outweigh constitutional protections for free speechbut there was no evidence whatsoever, the court noted, that any doctors or medical professionals have taken away patients firearms or otherwise infringed on patients Second Amendment rights. As the court wryly added, This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter).

Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership, the court explained, but it may not burden the speech of others in order to tilt public debate in a preferred direction.

Next, Florida argued that the legislature passed FOPA to protect patient privacy. (This, by the way, is the same legislature that also passed a law granting the state broad access to patient recordsat abortion clinics.) But as the court noted, there is no evidence that doctors or medical professionals have been improperly disclosing patients information about firearm ownership. Moreover, patients are fully empowered to not answer doctors questions about firearms. So any patients who have privacy concerns about information concerning their firearm ownership, the court writes, can simply refuse to answer questions on the topic.

Several other judges then took turns clobbering the law on different grounds. Judge Stanley Marcus, writing for a majority of the court, explained why FOPAs anti-harassment provision is also an unconstitutionally vague restriction on speech. Judge Charles R. Wilson, joined by Judge Beverly B. Martin, slammed that act as a subversive attempt to stop a perceived political agenda [that] chills speech based on not only content but also a particular viewpoint.

And even the extreme conservative Judge William Pryor felt moved to concur, expressing his belief that the profound importance of the Second Amendment does not give the government license to violate the right to free speech under the First Amendment. Only one judge, Gerald Bard Tjoflat, disagreed, devoting his dissenting opinion to a bizarre attack on the Supreme Courts current free speech jurisprudence.

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These multiple writings all drive home the same critical point: FOPA marked an attempt to limit the protections of the First Amendment by expanding the scope of the Second Amendment. Floridas radical defense of FOPA held that the Second Amendment is so powerful that, in order to safeguard it, the state should be allowed to diminish other constitutional rights. The 11th Circuit was right to reject this argument. Florida already does a great deal to protect the rights of gun owners in the name of the Second Amendment. But the Constitution does not allow the state to muzzle doctors who wish to inquire about gun safety.

In recent years, a considerable amount of ink has been spilled criticizing the American left for allegedly censoring speech it finds offensive. But FOPA is one of the most censorial pieces of legislation to emerge from a state in this decadeand it is the work of Republican legislators, and a Republican governor, whose intentions were to shield gun owners, those delicate snowflakes, from experiencing a brief moment of mild discomfort. There are real threats to free speech in America today. But they are more likely to emerge from Republican statehouses than from liberal college campuses.

Excerpt from:
Docs vs. Glocks Shows the Threat to Free Speech Is the Pro-Gun Right - Slate Magazine

Residents on Wednesday night show support for the Borough Council.(Photo: Tom Nobile/NorthJersey.com)

RAMSEY The Borough Council approved an outside legal defense Wednesday night as it prepares for litigation against an ordinance that would block a 60,620-square-foot gun range from coming to town.

Troutman Sanders, an international law firm based in New York, will defend the borough on a pro bono basis, said Mayor Deirdre Dillon.

On March 8, the council will vote to amend a 1961 ordinance that prohibits the firing of any pistol, shotgun, rifle or other type of firearms anywhere in the borough. The ordinance currently contains an exemption for gun ranges, but the council plans to remove that loophole.

Local officials put forth the ordinance change as a matter of public health and safety, justweeks after a Pennsylvania developer proposed the range to the Planning Board last month.

Multiple parties have pledged to sue if the ordinance is adopted. Among them is the New Jersey Second Amendment Society, an advocacy group for gun owners. President Alexander Roubian said his organization is ready to partner with the Second Amendment Foundation, a national nonprofit, on filing a complaint in federal court.

James Jaworski, an attorney for the range, also plans to protect his clients constitutional rights if necessary.

Troutman Sanders brings experience arguing before the appellate division and Supreme Court, according to Dillon.This is a constitutional law issue, she said.

Roubian said his attorneys are eager to take the case in light of the latest court decisions in Chicago. In years past, and most recently in January, the appellate court ruled against the city for trying to ban and limit gun ranges by zoning.

On a separate track, resident Chance Parker has created a legal fund to challenge the application at the Planning Board level. To date, it has raised $4,500 of its $25,000 goal. The money would help hire an independent planner, engineer and environmental consultant to review the application.

Were trying to provide an effective third-party opinion, he said.

The full-service firing range would have 67 firing stalls, a space for retail sales, gun rentals and a restaurant. Members would have access to locker and bath facilities, and a country-club-style room with a fireplace, billiards and gaming.

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Ramsey hires legal defense against 2nd Amendment challengers - NorthJersey.com

Attorney General Marty Jackley has joined a brief filed in the United States Supreme Court by 26 Attorneys General seeking to protect Second Amendment rights.

The Second Amendment gives law-abiding citizens the fundamental right to bear arms for the defense of themselves, their families and their homes. As Attorney General, I have a strong interest in protecting and defending our law-abiding citizens right to keep and bear arms, stated Jackley in a release.

The brief was filed in the case of Edward Peruta v. State of California.

The Ninth Circuit Court of Appeals held that there was no right to concealed carry of a firearm.

The brief argues that requirements imposed to carry a gun in San Diego violate the Second Amendment. Those requirements are being interpreted to prevent ordinary citizens from qualifying for a permit.

The states contend that the requirements effectively ban the core right to bear arms for ordinary law-abiding citizens.

The Attorneys General argue that Both the text and history of the Second Amendment demonstrate that the right to keep and bear arms does not stop at the front door of the home.

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State joins effort on Second Amendment - Rapid City Journal

Liberal politicians who run states and cities have certain habits they come back to again and again. One is the passage of gun bans they know perfectly well are clear violations of the Second Amendment. Why do the do this? Partly because ideologically they cant help themselves. But also: They hope to create test cases in the courts that, they hope, will produce favorable rulings and thus establish case law that renders the entire Second Amendment null and void.

Toward that end, the State of Maryland scored a very big victory today, as the Fourth Circuit Court of Appeals upheld an assault weapons ban that cant possibly be defended as constitutional. So why did it survive? Because there are many in the federal judiciary who share the goal of repealing the Second Amendment, and hope to be the judges assigned to these test cases. The Fourth Circuit really outdid itself with this one.

How bad was the ruling? Take it away, David French:

How can it reach such a conclusion? Remember the formula: contempt, willful ignorance, and fear.

First, lets look at the courts breathtaking contempt for individual rights. Rather than read the Supreme Courts controlling opinion in District of Columbia v. Heller according to its plain language, it deliberately distorts Justice Antonin Scalias majority opinion. In Heller, Scalia clearly stated that the sorts of weapons the Second Amendment protects are those that are in common use at the time, with exceptions that apply to those weapons that are dangerous and unusual.

Why the addition of and unusual? Because every single working gun ever made is dangerous. To illustrate his point, Scalia then provides examples of specific types of dangerous and unusual guns M-16 rifles and the like. Heres a news flash: The M-16 isnt the same as a civilian assault weapon like the AR-15. The M-16 variants in use in the United States military are capable of being fired in both semi-automatic and fully automatic (three-round burst) modes. If you think that the M-16 and AR-15 are alike, then walk to your local gun store and try to buy an M-16.

Go ahead. Ill wait.

Are you back yet? Do you have an M-16? No? Thats because its an entirely different category of weapon, governed by different federal statutes. The Fourth Circuit, however, deliberately conflated semi-automatic weapons and automatic weapons. And it went to absurd lengths to do so.

There is much more to Frenchs excellent analysis than I can fairly excerpt here, so please click through and read the whole thing.

Its very instructive to see that the Fourth Circuit so badly mangled Scalias argument in Heller to reach the conclusion it did. It speaks to a group of judges looking for a legal rationale for a ruling they were already bound and determined to issue, rather than following the law wherever it leads you, which is what judges are supposed to do.

Heres whats ironic, though, about the dreck that is this ruling and Frenchs solid analysis of what makes it so bad. Having lost the presidency, Congress, and the vast majority of governorships and state legislatures, the only thing the left still has to thwart conservative policy initiatives is the prospect of help from liberal judges. In this case, they upheld an unconstitutional law passed by a Democrat governor and legislature in a blue state. But elsewhere, as in Texas today, judges are striking down duly passed laws that by any reasonable standard pass constitutional muster.

The Supreme Court may yet save the Second Amendment, and maybe a judge that understands the separation of powers will restore the right of Texas lawmakers to decide who gets taxpayer money. But the reason this is so ironic is that David French was one of the leading voices arguing during the presidential campaign that the Supreme Court was not sufficient reason to support Donald Trump in the general election over Hillary Clinton.

I think French is a terrific writer and thinker on all kinds of issues, but he was #NeverTrump to the core and believed a Trump presidency would be so injurious to the conservative movement that even the prospect of a liberal court majority for the next generation wasnt enough reason to back Trump.

I wonder how happy French is today that Trump was elected, and that Neil Gorsuch stands a very good chance of being the deciding vote in a ruling that overturns the Fourth Circuit and restores the Second Amendment. The federal judiciary is out of control, and that is a much bigger problem that Donald Trumps communication style or anything else you dont like about him.

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Fourth Circuit Court of Appeals decides the Second Amendment is just a suggestion - Canada Free Press

Yes, the Second Amendment is outdated. Or, waitIm sorryare there still militias marching about? This is the right to bear arms qualifier, correct? Here's some of the historical context:

This amendment-turned-platitude was drafted into the Constitution purely so that slave owners could form militias and repel uprisings, so that southern white men could protect and maintain their lofty stands from the federal government, from slaves, from Native Americans, from foreign incursion; so that the settlers and newly-branded Americans could arm themselves in preparation for the wars and skirmishes with England and France and Spain and Mexico and Canada that all might occur on domestic soil (many of which did end up occurring); so that the country as a whole could arm itself against the kind of tyranny itd so freshly escaped; so that frontiersmen could hunt for food, kill grizzly bears and wolves and wildcats and fight with native tribes and foreigners, not so that peppy yeomen could defend themselves and their buddies from machine-gun madmen and terrorists.

This was no conception of the founding fathers, no consideration made by our untouchably sacred Constitution, which systemically provided for the non-relevancy of women, and for the legalization of slavery and the oppression of anybody not white, not landed, not malewhich has been amended 17 times, but apparently never again.

What exactly is the pro-gun rights supporters ideal world?

A world in which every Ma and Pa holstered themselves and their of age children each morning before running along to work or school? So that in the event of a mass shooting, the banker or checker or student or clerk everyman could draw and fire against the perpetrator(s)? Surely, there would be no trouble in this?

If, on the occasion of a wild man pulling a gun and firing into a crowd, three-dozen others did the same and fired at these perpetratorsthere wouldnt be a mess of a crossfire; a mess of figuring out who the bad guy iswho it is, exactly, all the good guys are supposed to be shooting at when everybody else has got a gun; no mess of dead innocents and mayhem as every man and women with a firearm looks to their neighbors empty holster and swings round?

Perhaps we should bring the gun manufacturers into the national bureaucracys fold? More so than they already are, that is. I see no real reason why the NRA shouldnt just be another governmental agency. Perhaps they could issue pistols to every American upon their 18th birthdaysurely, this would prevent violence on our city streets and in our city bars and our city schools. Lets just give each and every soul a killing machine; This, thissurelywould finally put an end to all the killing.

Yes, if only every college student, every barkeep, every passerby in this past Sunday mornings crowd on Welch Avenue that was shot into would have had a pistol strapped to their thigh, then the situation would have been all the more improved. If, after, the perpetrators had taken their shots and sped away, a good 15 or so men and women would have pulled out a gun and looked to each other in confusionthen look where we might be. Look what mightve been accomplished.

NoI must slow down. I speak crazily. I speak of exaggerations, of unfairly reached logical ends and enough! say the pro-gun rights folk. Not everybody needs a gun. Only those whove been properly vetted, whove taken the proper tests; those among us who could be reasonable and responsible under pressurethose who really know what theyre doing.

But wait? does this not eerily sound like something weve already got? Something, perhaps, like the police force?

This is why we ought to strike the Second Amendment in its current state. Replace it with something more apropos. Our world is a changed one from 1787, and it deserves some changed legislation.

I do not call for the prohibition of guns (which is impossible) or even for particularly strict gun control law (just stricter than what weve already got). But what I do really call forwhats desperately neededis some actually meaningful, relevant, worthwhile, updated Constitutional language that clamps down on what is such a pathetically weak truism and argument: the right to bear arms.

The above paragraphearlier in the week having been my concluding thoughtsmust now survive a few more addendums.

A bill has been proposed in the Iowa legislature which would provide for the legal carrying of firearms on campus grounds.

I need not restate so much of what Ive already mentioned, but would merely remark that whatever supposed belief in efficacy there could exist (on the part of the bills supporters) for the handing over of such a dangerous right to a pack of green 1822 year-olds is beyond delusional. This is an absolutely wild proposed solution to a very serious problem, and it deserves a more serious resolution.

More guns simply arent the answer. Theyve never been the answer. There are more complex issues at the root of these violent symptoms, and to treat the symptoms alone with such a surface-level reaction would be a grave mistake. It may take some horrible tragedy for the nation to unite on this front, and for that I am truly sorry.

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Felker: Guns on campus? How about we strike the Second Amendment? - Iowa State Daily