The ABA Journal reports that Larry Tribe explained that the 11th Circuit’s recent decision in the “Docs v. Glocks” case held that “First Amendment right of physicians to discuss gun safety issues with patients was trumped by the Second Amendment.” If correct, this is really, really wrong.
One area of potential conflict among the appellate courts is how the First Amendment applies to gun regulations in the context of the Second Amendment, Tribe said. He cited a July 25 decision (PDF) by the Atlanta-based 11th U.S. Circuit Court of Appeals holding that a First Amendment right of physicians to discuss gun safety issues with patients was trumped by the Second Amendment. “It’s a ruling that I find implausible,” he said.
The decision had nothing to do with the Second Amendment. No doubt it was motivated by people who believe in strong gun rights, and the state cited protecting Second Amendments as a justification for the law (the dissent focuses on this at great length from pp. 140-161), the majority opinion itself was in no way based on the Second Amendment. The Court’s precedents in Heller and McDonald were not at all relevant–they weren’t even cited anywhere in the decision. The majority opinion was based purely on the First Amendment, privacy law, and the police power over the doctor-patient relationship.
Here is how the majority opinion characterized its holding:
As such, we find that the Act is a legitimate regulation of professional conduct. The Act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care. It is uncontroversial that a state may police the boundaries of good medical practice by routinely subjecting physicians to malpractice liability or administrative discipline for all manner of activity that the state deems bad medicine, much of which necessarily involves physicians speaking to patients. Although the Act singles out a particular subset of physician activity as a trigger for discipline, this does little to alter the analysis. Any burden the Act places on physician speech is thus entirely incidental. Plaintiffs remain free—as physicians always have been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful. Furthermore, when the Act is properly understood as a regulation of physician conduct intended to protect patient privacy and curtail abuses of the physician-patient relationship, it becomes readily apparent from the language of the Act the type of conduct the Act prohibits. Accordingly, we reverse the District Court’s grant of summary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act.