“Could a state prohibit a doctor from advising parents to vaccinate their children? Could a state prohibit a doctor from recommending abstinence or encouraging safe sexual behavior? What about organ donation or surrogacy or terminal care?”
Perhaps not...but a state could still prohibit the First Amendment.
In a recent editorial “A Win for Free Speech and Gun Safety” the New York Times wrote about Florida’s gag rule infringing on medical physician’s First Amendment. In the same way that physicians ask their patients about vaccinations, contraception, and pool safety physicians argue that they should be allowed to ask their patients about gun safety. To this end, Judge William Pryor stated that “criminalizing medical advice is a slippery slope.” In light of this, how far does a state’s power extend when it comes to prohibiting free speech?
Lizette Alvarez reported on a Supreme Court case earlier this February as noted in her New York Times article “Florida Doctors May Discuss Guns with Patients, Court Rules.” Interestingly, according to Alvarez, Florida was the first state in the US that attempted to restrict the First Amendment rights of medical providers to “discuss the safe storage of guns with patients.” The state passed the restrictive law in 2011. If physicians violated the gag rule (by asking patients or patients’ families about gun ownership, gun storage or gun habits) then physicians would risk large fines or losing their medical licenses. The law was aimed at pediatricians specifically, given that pediatricians ask parents about domestic safety, pool safety and gun safety during routine appointments. Quite a few doctors sued Florida in a case that became known as Docs v. Glocks (the popular handgun).
The “gag rule” (as it was affectionately termed) was motivated by personal anecdotes from Floridians who felt targeted by medical professionals on the topic of gun ownership. According to Alvarez, people in Florida “said they felt pressured to answer questions about gun ownership,” and were harassed by physicians if they chose not to answer the questions. Some people felt that if a physician asked about gun ownership, then it felt like an invasion of privacy. The National Rifle Association, like some residents in Florida, found physicians to discriminate and harass individuals. These anecdotes, however, were never bolstered with court evidence - not even in 2011.
Early this February, a long 6 years after the gag rule was ratified, the US Supreme Court ruled against Florida’s restrictive law, thereby overturning the 2011 law. In this way, the Court re-opened channels for physicians to discuss gun safety with their patients. Supreme Court judges maintained: “there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients’ firearms or otherwise infringed on patients’ Second Amendment rights.” The fact that physicians in Florida could, once again, speak openly to their patients and families about gun safety restored many physicians’ abilities to care for their patients holistically. Many physicians noted that the mere right to speak to a patient about gun safety did not threaten the right to own a gun - this notion was “nonsensical and dangerous,” as noted in Alvarez’ article. A physician’s ability to speak to her patient about gun safety is not only critically important for maintaining that patient’s safety, but also essential for maintaining community and public health safety.
Thus far, Florida’s attempt to supersede a Constitutional right failed. The Supreme Court filed in support of physicians’ freedom of speech in light of maintaining patient safety and public safety. Yet, when it comes to gun control on college campuses the laws are quite different.
Earlier this year, the National Conference of State Legislatures discussed the conceal carry weapon laws on college campuses. While campus shootings called for tighter restrictions on gun control in some states, there were other states calling for a need to ease existing firearm regulations.
In 2013, there were 19 US states that introduced legislation “allowing concealed carry on campuses.” [1] There were 14 more states in 2014. It is important to note that all 50 states allow citizens to carry concealed weapons provided that those citizens meet specific state requirements. In this way, there is a balance of power between federal and state authorities. Additionally, there is a balance of power between First and Second Amendment rights. As of January 2017, there were 17 states banning concealed weapons on college campuses including California, Florida, Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, South Carolina and Wyoming. In another 24 states, the decision to ban or allow concealed carry weapons is at the discretion of each individual college. These states include Alabama, Alaska, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Indiana, Iowa, Kentucky, Maine, Maryland, Minnesota, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, Washington and West Virginia. Another 8 states allow the concealed carry weapons to be carried on college campuses, including Colorado, Idaho, Kansas, Mississippi, Oregon, Texas, Utah and Wisconsin.
An example of a school prohibiting concealed carry is the Georgia Institute of Technology where students cannot carry a concealed weapon in ‘school safety zones’ including property owned by a public or private elementary school, secondary school or local board of education. Furthermore, weapons cannot be carried in any public or private technical school, vocational school, college, university or other institution.
For states allowing concealed carry, on the other hand, there are often additional checks and balances in place. For example, Texas A&M University created a President’s Advisory Committee on Campus Carry Implementation to serve as a body that could monitor the implementation of the university’s concealed carry policy. The Committee is responsible for “developing and communicating procedures to the campus community” including guidelines for requesting presidential approval for areas where licensed carry of a handgun will be prohibited. The university and Committee alike maintain that “a license holder may carry a concealed handgun on the campus of Texas A&M University or in a university vehicle, unless prohibited by state or federal law.” [2] Another example is the University of Tennessee where faculty with relevant licenses can carry weapons on campus, but not students or the general public.
Why is there a difference in gun safety and/or gun control conversations in the medical realm versus the college realm? How do these two environments differ in a way that encourages conversations about gun safety in one realm of society, while ensuring the presence of guns in public spaces in another realm? Should guns be allowed in public spaces via concealed carry if there are Committees maintaining protective measures? Which law is the ‘right’ law? Better yet, which law is the law that will protect our communities?
Discussions about gun control between the medical realm and college realm are varying and diverse, to say the least. As a current college student, I believe that all of these considerations should be taken into account when considering a constitutional right. When the country is not distracted by President Trump’s dubious decisions on international affairs, many can focus on important internal policies like gun control - an area that requires increasing attention in order to ensure the safety of our communities with immigrants and citizens alike. When Florida passed its gag rule in 2011, many questioned whether the state had the right to stem the flow of information between physicians and their patients. Others questioned whether the state had the right to protect the Second Amendment. Now, as the tensions between these two rights continuously come into question in two realms, we must consider whether we are trying to protect individual liberty or a shared liberty for all.
References:
- Alvarez, L. “Florida Doctors May Discuss Guns With Patients, Court Rules,” New York Times, February 16, 2017. https://www.nytimes.com/2017/02/16/us/florida-doctors-discuss-guns-with-patients-court.html?rref=collection%2Ftimestopic%2FGun%20Control&action=click&contentCollection=timestopics®ion=stream&module=stream_unit&version=latest&contentPlacement=5&pgtype=collection.
- “A Win for Free Speech and Gun Safety,” New York Times, February 18, 2017. https://www.nytimes.com/2017/02/18/opinion/sunday/a-win-for-free-speech-and-gun-safety.html?rref=collection%2Ftimestopic%2FGun%20Control&_r=0.
- “Campus Carry.” Texas A&M Updates on the Implementation of Campus Carry, October 27, 2016. http://www.tamu.edu/statements/campus-carry.html.
- “Current Laws,” Georgia Tech Students for Concealed Carry, 2012. http://www.sccc.gtorg.gatech.edu/current.php.
- “Guns on Campus: Overview,” National Conference of State Legislatures, January 24, 2017, http://www.ncsl.org/research/education/guns-on-campus-overview.aspx.