Appeals Court: Yes, Doctors can inquire about Firearm ownership
Maybe one of our resident lawyers can weigh in here, but it seems to me that the justices in this case were way more concerned about evidence of actual speech rather than the principle that it is none of a doctor's business. I also found the claim that someone can find a different doctor not only insulting, but specious given that the doctors are being pressed by legislators to make their treatment conditional.
My hoping is that this goes to the Supreme Court and gets overturned.
My hoping is that this goes to the Supreme Court and gets overturned.
Link?
Is it not clear that the socialists will use any and all means to push their agenda? When they can con enough people, they pass the laws; when they can't con the people, they wait until their activist judges are in position and then do it through the judiciary; they'll buy votes with millions and millions spent in a small district to set a precedent; lying, cheating and occasional murders to eliminate unwanted people are the tools. And above all else, the total control of the education system is now bearing fruit - well over a 100 million people who can be certified as morons, but who will march, demonstrate, break windows and attack people when given an order. When the Regressives spent as much effort as they did on Obamacare, you know there is an agenda, and it is not for the purpose of helping your grandma to get access to a better doctor.
Yes. I generally see no advantage to sharing with people what kind of guns I have. I can think of all kinds of disadvantages.
- Someone wanting to put the blame a crime on me or just harass me could say they saw me threatening someone with a specific gun, and their knowing the right type of gun would make their lie more credible.
- Someone wanting to attack me would have information I'd rather they not have.
- Someone might get a notion to steal the guns.
- Someone could use it to poison the well about me to those who don't like guns.
I just don't see the upside of sharing weapons info with strangers.
It doesn't ring true to me that there was any conspiracy to harass people about their guns, but given how much the gov't dicks with the healthcare market; anything's possible.
Much of what they did was geared at making the healthcare market into a "system" that protects citizens as if they were children. I know a child of dual alcoholic parents who was grateful when the gov't treated his parents like children. I do not agree with gov't acting as a parent, but it's definitely not as simple as all gov't paternalism always being a ploy. I'm for less paternalism and letting people rise to the occasion. It's not simple issue.
I would obviously be against any ploy to harass people about the guns, but I don't buy it. I think they're trying to manage all aspects of troubled people's lives, and that's the problem.
Yes, it is. Because that is when people lose their freedom. And that is what is at stake in this issue: the loss of freedom.
Seriously, I would hope No one would answer that question...if they do, they are probably sick puppies, or deserve what they get for being so stupid.
No conversation is "Confidential" anymore in this tattle tale world.
Now I have a weapon when she misbehaves...laughing.
At issue was not whether a given doctor may inquire into such matters, but whether said doctor would report the answers to higher authority. Most jurisdictions recognize and prescribe a psychiatrist's duty to warn higher authority if they have a patient who, in their considered opinion, poses a threat to self or others. I believe, and I'm sure I'm on solid ground, that Barack Obama, who promulgated the idea of doctors inquiring about weapons, sought to impress upon doctors the notion that the mere possession of weapons other than kitchen implements and hand or power tools made the possessor ipso facto a threat to self and others. It would then logically follow that the doctor would have a duty to report to higher authority who among his patients kept or bore weapons, and what kinds. That way lies the registry of weapons, the first essential step toward their confiscation.
Why would a doctor engage in such a conversion to begin with? Does it sort of start out like the Birds and Bees talk, "Have you considered protection when polishing your pistol".
How does that work?
I wouldn't be pop-off at the doctor, I wouldn't tell him to mind his business. Just answer it, "no, I have no guns", "or what an odd question - why do you ask?" - now you have him answering questions :-)
Especially, if them asking is because of Gov't demand for statistics - which would be the bigger concern of mine. Lying is legal unless under oath.
The court case cited by the O.P. was about a law forbidding doctors from discussing guns, not a law requiring them to do so and to report their findings to the government.
to quote: "Physician counseling of parents about firearm safety appears to be effective, but firearm safety education programs directed at children are ineffective." Besides the above statement being false, this is one example of the direction given to the pediatricians. One can make an argument that the direction is from a "professional" organization, not the government itself. Of course, one must be very naive to think so, as the data that the pediatrician enters into the health records is now accessible government-wide. There are other references, which would simply require more time to look up, but they are there and the ends of these threads all go up to the Obama administration.
Proponents of gun control were attempting to use the ACA to create a backdoor gun registry and to use medical practitioners "evaluations" in order to justify firearm confiscation. And all that could happen on the subjective political decision of a bureaucrat or doctor with an agenda without Fourth Amendment due process. In case you were not aware, several states have passed laws that allow for the confiscation of owned firearms from patients deemed mentally or emotionally dangerous without even a court hearing or defense until after the confiscation. In order to get their possessions back, they have to spend their own money to prove they are not a danger - completely the opposite standard of prosecution that is the backbone of the Fifth Amendment.
"What would be appropriate would be a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion."
I don't disagree in the slightest. If the conversations between doctors and patients were completely and absolutely protected from investigation by the government, I'd totally be with you. The problem is that our current environment just isn't the panacea you are predicating your argument to apply to. We don't disagree - we're just talking about different worlds: you the ideal and me the current.
“And because the panel majority is applying the general First Amendment test, its reasoning would set a precedent for many other restrictions. Indeed, the opinion validates many arguments that are already urged to restrict “hate speech,” justify campus speech codes and the like. Free speech being trumped by the supposed need to protect other constitutional rights — that’s exactly the argument given for restrictions on supposedly bigoted speech, on the theory that bigoted speech undermines the 14th Amendment right to equal protection.”
https://www.washingtonpost.com/news/v...
The problem isn't the doctor-patient conversation, it's what's done with the record afterward.
It is not good political strategy to "protect" the Second Amendment by trashing the First Amendment.
And just a clarification, but this isn't trashing the First Amendment at all. It is making divulgence of non-relevant information a precursor to even getting treatment.
The bill in question recognized the fact that gun ownership is not a mental condition, nor should it be the role of a medical practitioner to step outside their role to be a government agent. The doctor does not have a "right" to question a patient about anything at all. It isn't protected Speech. This isn't a forum where the listener can just walk away. A patient is a captive audience and to turn a medical visit into a political soapbox is not only inappropriate, it is wrong. It is just as wrong as for a university professor to turn their classroom into a convenient political soapbox.
In regards to your assertion that this law constituted a violation of a physician's right of Expression, I would point out that restricting someone from asking an irrelevant question to a captive audience is hardly a restriction of First Amendment rights. What really is at stake is the patient's retention of their Second Amendment rights from attack by a politically motivated doctor - or worse a politically motivated bureaucrat.
Please look up the legal definition of captive audience. You'll find it is entirely appropriate in this situation. (https://definitions.uslegal.com/c/cap...)
"And if a federal law does exist requiring a doctor to ask such questions, having a state law forbidding such questions puts the doctor in an impossible position – he must break either one law or the other. "
And that was precisely the point: to force the issue into the Federal Court system because it was a bureaucracy making up rules without the legislature's input. Because of the way the ACA was worded, it was given broad law-making authority. The goal was to have the ACA's rule-making ruled unConstitutional by showing this very conflict in light of Constitutional protections.
"what is appropriate in this situation is a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to"
What you forget or ignore is the fact that law enforcement and other government agencies are entitled to view patient records on the flimsiest of excuses. If doctor-patient privilege actually existed, you would have a valid argument. Unfortunately for all of us, that privilege doesn't actually exist in practice. And as I have demonstrated in the cases of Veterans and SS recipients, their Second Amendment rights were in fact infringed as a result of their "confidential" patient records being accessed by government bureaucracies to specifically and unConstitutionally target lawful owners of firearms because of political ideology.
In an ideal world, yes, they are. I agree. But until our doctors aren't beholden to the government for their livelihoods and patient records are truly confidential, we have to deal with the system we have. I'd like nothing more than to get the government out of healthcare entirely, but until that happens, I have to look at things with a jaundiced eye.
Scenario A: two friends get together at a bar for drinks. One happens to be a doctor and his friend brings up his bad back. The doctor gives his friend some free advice and then the conversation turns to politics, wherein the friend tells his doctor friend about a new Mossberg pump shotgun he just purchased. The doctor says that he can't ethically own firearms because of his commitment to the Hippocratic Oath. The conversation ends there.
Scenario B: a patient goes to see a doctor about a bad back. After being taken back to a private examination room, the doctor comes in with a clipboard and starts asking the patient what the problem is. The patient mentions the back problems and the doctor then says "So, do you own any firearms?" The patient looks at the doctor, confused, trying to figure out what owning firearms has to do with his/her bad back. The patient needs some medication or treatment, however, because their bad back is interfering with their ability to hold down a job. They had to wait two weeks just to get this appointment, and now they are uncomfortable about this new line of questioning.
Scenario A? First Amendment protection, absolutely. Either has the option to get up and leave at any time with no repercussions.
Scenario B? Freedom to leave the situation isn't absolute. The doctor controls the conversation and even failure to answer is an answer in and of itself - therefore captive audience doctrine applies. Coupled with the privacy concerns and the divulgence of this information to third parties, and we compound the dangers inherent in the situation for the arbitrary infringement of rights.
In your Scenario B, the patient also has the option of lying to the doctor or refusing to answer the question. And for an adult, the absence of physical or legal restraint means he is not “captive” in any meaningful sense of the term. The inconvenience of leaving does not equate to captivity.
The court that overturned the Florida law is right on point in dismissing the “captive audience” argument (see pages 35-36):
“First, ‘the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer’ . . . and where adults are concerned the Supreme Court has never used a vulnerable listener /captive audience rationale to uphold speaker-focused and content-based restrictions on speech . . . Second, doctors and patients undoubtedly engage in some conversations that are difficult and uncomfortable, and the first sentence of § 790.338(4) already gives patients the right to refuse to answer questions about firearm ownership. There is nothing in the record suggesting that patients who are bothered or offended by such questions are psychologically unable to choose another medical provider, just as they are permitted to do if their doctor asks too many questions about private matters like sexual activity, alcohol consumption, or drug use.”
http://media.ca11.uscourts.gov/opinio...
Yes, I support this bill because a doctor has no right to ask these questions to their patients in the first place. The First Amendment is not an unlimited right and does not give everyone the right to say anything to anyone at any time. There is an appropriate venue for every conversation. A doctor's office is not the place to play politics.
So if you are on disability for bipolar disorder or depression you won't be buying a firearm and could easily land on the no-fly list.
How many acts of terror from either? Neglible or zero. How many from Islamic fanatics or schizophrenia? Quite a few, but those are political third rails, so we'll make ourselves feel better and go after someone on Lamictal or a CPAP machine or if they served in the military and have PTSD, declare the vet an enemy of the state.
It sounds ludicrous, but that is the legislation in place.
Fortunately, my doctor has never asked me in 15 years¦ he was born in Afghanistan though and doesn't like or trust government. My ENT used to be my C5 flight surgeon, he knows better than to ask (or doesn't need to ask).
I HAD a physician who asked such questions, inserted them into my record, and added other things that were either incorrect or misinterpreted. I fired her.
Sounds good in theory, although with a large collection that wouldn't be the same connotation for me as someone losing a Glock from under the bed. I think about all the looney HOA conflict crap that happens in suburbs and I'm assuming it will go too far. Fortunately I don't have many neighbors either (and all of them own guns).
Never underestimate how information in a medical record could serve some future political purpose.
I don't pay some doc thousands to tell me that my dozens of firearms are going to somehow be a threat to my health, he can read labs and use the medical decision support system like most of them. I've proven many times that an AR sitting on my back patio didn't jump up and rob a bank while I'm cleaning another one and enjoying an iced tea.
It's always something with that agenda - it's the full autos, then the AR 15, then the semi auto rifles, then large magazines, even though the FBI database shows that well over 90% of gun crimes are with a handgun and the AR is only a tiny percentage of the remaining 10% where a long gun was even used (hunting rifle, shotguns, etc.)
Their whole argument is bullshit, start to finish. This is just one more element.
Here's my argument. Do I get a refund and reimbursement at my professional salary if I get up and walk out because I won't answer and don't care to listen to their first amendment speech? They can say it, I don't have to listen to it. They can do their Truman club dinners too, doesn't mean I would go or make a donation. Freedom of speech doesn't mean the right to an audience, college students need the right to an A as well if they don't want to sit in a chair and be brainwashed either.
If I go to the doctor with the flu, I don't want to be questioned if I own firearms. It's like going in with a headache and suggest I get an oil change on the Chevy.
Let's go a step further, my son did his appointments from the time he could drive and I didn't accompany him since about age 12 in the exam. Does the doctor ask junior or daughter if mom and dad keep firearms?
Any thought that it stays in the doctor's records is preposterous, almost every state has a health information exchange for transfer of records between providers and also stores a centralized copy that can be retrieved by a different doc or for statistical disease research and public health reporting to the CDC. The regs say PII data on stats data has to be omitted, but that isn't a technical limitation, you probably thought your phone records were never looked at either, but oops, the federal government hoovers up 50 terabytes an hour worth.
And your hypothetical is overstating the actual case, since a professional association’s guidelines do not have the force of law, and the government is not requiring doctors to actually advocate for gun control within the doctor-patient relationship.
As to solutions: At the individual level, the patient can either refuse to answer any intrusive questions or lie. The doctor can make it clear that he is bringing up the subject under duress, and do the minimum necessary to satisfy the government’s criteria. At the state level, the legislature can pass a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion. This will bypass the disadvantages of the Florida law that was overturned. And at the political level, people can work to elect candidates who oppose the government’s bias. In respect to the gun issue (and several others), this was accomplished with the election of Trump, and may make the whole issue of doctors’ freedom of speech moot.
But the important fact that I've been bringing up and you haven't addressed - there are documented cases where activist doctors have interrogated children on this subject, without the presence of a parent. That makes it a captive audience, for one, but probably also brings up a slew of legal and moral issues, as well. Perhaps a better phrasing would have been a directive to nullify the federal requirements, as opposed to preventing a discussion if both parties are willing to participate. But either way, it would have been challenged by the activists with their unlimited resources.
If we want to stop crime and terrorism, ask if they live in a crime prone neighborhood, are on public assistance, or affiliate with a radical Muslim mosque.
(1) HIPAA, giving the Feds access to everyone's medical records, were repealed and a privacy right of the consumer in his records were accepted.
(2) The government stopped intentionally limiting the supply of doctors, so that they would have to compete enough to give consumers power.
The VA has never asked me, but they do precede every encounter with, "Are you thinking of suicide?" or some form of it. Even when you call them the recorded message asks, and you always get the message, never an actual person. Apparently they have a policy against answering the phone with a live person. Just my two cents worth of complaint.
My MD would have to ask me if I have a firearm because I believe concealed carry is a better strategy partly due to ignoired gun free zones such as banks..
Me dino would say, "Want to see it? It's in a pocket holster that looks kinda like a wallet when I first pull it out."
Should I ever have to prove I sold that gun to keep my social security, I'll just trade it in for another that doesn't have a steel grip. The recoil of that Sig somewhat uncomfortably stings that "web" spot between my hand and my thumb.
I have three other handguns anyhoo (one a smaller caliber pocket pistol) plus a carbine and a shotgun.
The chiropractor I see once a month does not care. He once told me he sees plenty of guns. I put the little holstered Sig and my spare clip in a small plastic basket with everything else in my pockets before he goes to work on me. .
You can question any judicial decision you please, but until it becomes settled law your opinion and mine are both just that – opinions. And in the philosophical rather than the legal sense, I don’t think an Objectivist argument can be made that an adult patient interacting with his or her doctor is a “captive”.
If we lived in a perfect Objectivist world, this wouldn't be an issue. I completely agree. So wave your magic wand and change the world! ;) What we actually live in is a nation that has seen the abuse of patient information to arbitrarily limit the Second Amendment rights of SS recipients and veterans as a matter of fact. That needs to stop and this ruling doesn't help that process.
"You can question any judicial decision you please, but until it becomes settled law your opinion and mine are both just that – opinions."
I don't disagree. The reason I posted this is because I believe that the judges came to their conclusion not based on the facts of the case, but based of their own personal bias of interpretation. It wouldn't be the first time such a thing has been posted to this forum. You obviously disagree and have made cogent arguments and I applaud you for that. We disagree in our interpretation of these events. That's life.