Tuesday, March 01, 2016

11th Circuit to Hear Challenge to Repudiation of the Medicalization of Gun Control

The Eleventh Circuit court of appeals, in an unusual decision, has decided to hear the case of Dr. Bernd Wollschlaeger, et al. v. Governor State of FL, et al.  in the matter of the Firearm Owners Privacy Act (FOPA).  The FOPA provided that doctors and other health care professionals could not use their professional position of power in order to collect private information from firearms owners, and potentially make that information available to third parties and numerous government agencies.  FOPA had been struck down by the district court, then upheld in three different rulings by the three judge panel of the 11th Circuit.  From news4jax.com:
The 11th U.S. Circuit Court of Appeals scheduled the arguments for June 21 in Atlanta, according to a document posted on the court's website.

A three-judge panel has issued three rulings that upheld the law, with the most-recent ruling in December.

But the full appeals court then decided to take up the issue in what is known as an en banc proceeding.
An en banc proceeding is relatively rare, but they do take place now and then.  The decision to invoke the en banc hearing of the case  was published on February 26th, about two weeks after Supreme Court Justice Scalia's death.  It is not precisely clear when the decision was made.  It is normally done by a vote of all the justices on the Court.  The decision in this case is extremely important, because the ruling of the three judge panel destroyed the most significant current tactic in the disarmist arsenal, which is the medicalization of gun control, the process of changing the use of weapons from personal choice, whether responsible or criminal, into a theory where the choice of the individual is immaterial, and guns are treated as disease vectors, as viruses and bacteria are.  The earlier three judge panel found that guns were not disease vectors, a pretty easy decision, one would think.  From the decision(pdf):
With this great authority comes great responsibility. To protect patients, society has long imposed upon physicians certain duties and restrictions that define the boundaries of good medical care. In keeping with this tradition, the State passed the Act. The Act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care—especially not when that inquiry or record- keeping constitutes such a substantial intrusion upon patient privacy—and that good medical care never requires the discrimination or harassment of firearm owners.
The three judge panel also found that a physician who categorically tells a patient that it is unsafe to own a gun, without a specific medical reason, is chilling the exercise of the patient's Second Amendment rights.
It is of course an interference with Second Amendment rights for a trusted physician to tell his patient—for no medically relevant reason whatsoever—that it is unsafe to own a gun. Though such actions, on their own, may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights. Such speech chills the patient’s exercise of his rights and that is sufficient.
Whether the whole Eleventh Circuit will uphold the decision of the three judge panel is not certain.  It will be months before we know the answer to that question.

Definition of  disarmist

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1 comment:

Anonymous said...

You may want to check the constitution and recent supreme court rulings. A recent court ruling stated it is a basic tenant of American law that if it is not specifically written in the constitution it does not exist. there is nothing in the constitution creating authority for the government to be concerned with an individuals health care. there is no justification written in the constitution for the president to have a secretary of health in his cabinet. and there is still the second amendment and the tenth amendment that state very specifically that shall not infringe is in the U.S. Constitution. Shall not infringe is an all inclusive term making any thing the government might come up with concerning the right to keep and bear arms an infringement. since the words Gun or fire arms or individual health care are not in the constitution there is no authority to tie such words together to create any law concerning those unwritten words.
according to the tenth amendment it carries the same limitation on state constitution if it is not specifically written in the state constitution the states have no authority to tie unwritten words together to make a law and since the words Shall not infringe are in the U.S. constitution the tenth amendment requires the states to enforce the second amendment as written.
It has already been established by the supreme court that fire arms ownership is an individual right. being that it is an individual right there is no authority for the doctor to be able to require any person divulge their private information about ownership of anything. what might the government want to know next?