Are Guns a Pre-Existing Condition?

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By Francis Wilkinson

Governor Rick Scott of Florida says he does not want Medicaid paying for the health care of the poor people of his state, even if Florida pays only a fraction of the cost. Yet Scott's laissez-faire approach to health care has limits.

Last year, according to a federal court, he signed legislation that inserted the state "in the doctor-patient relationship, prohibiting and burdening speech necessary to the proper practice of preventive medicine, thereby preventing patients from receiving truthful, nonmisleading information."

That's what federal judge Marcia Cooke, an appointee of President George W. Bush, wrote in her June 29 opinion striking down Florida's "gun gag" law. The legislation sought to restrict physician inquiries into patients' gun ownership; according to the Brady campaign, about eight American children are shot dead each day, which explains why inquiring medical minds sometimes want to know if there is a loaded gun in the house.

The legislation was so haplessly conceived that it was never clear what exactly doctors were prohibited from doing. The National Rifle Association, which (surprise) championed the bill, argued in its legal brief that "the plain language" of the bill "imposes no restrictions on health care practitioners' speech." In the NRA's view, gun ownership would qualify as a kind of pre-existing condition: The doctor's assigned role was to politely decline to acknowledge its existence.

The bill did have loopholes. Doctors, for example, were entitled to make a "good faith" inquiry -- a clear, objective standard if ever there was one -- about guns if they really felt it was necessary. (On what grounds? Who knows?) Yet it was clear that the whole point of the law was to discourage exactly that -- in effect, to bludgeon the First Amendment with the Second. Consequently, Judge Cooke found the law "chills" the speech of medical practitioners "in a way that impairs the provision of medical care and may ultimately harm the patient."

The abiding insecurities of the heavily armed inspire an enormous amount of public policy, much of it awful (see, e.g., "Stand Your Ground" -- and this). Cooke's ruling has scuttled, for now, the Firearm Owners Privacy Act. It's not clear if the state will appeal or turn its attention to churning out more bad law. Meanwhile, in addition to its own resources spent defending the gun gag, Florida may also be liable for the plaintiffs' legal fees.

(Francis Wilkinson is a Bloomberg View editorial board member. Follow him on Twitter.)

Read more breaking commentary from Josh Barro and other Bloomberg View columnists and editors at the Ticker.

-0- Jul/06/2012 14:27 GMT