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Wards of the Court

The rule of law is not at all the same thing as the rule of laws, or the preeminence of law in our lives; indeed, they are almost opposite, insofar as one of the objects of the rule of law is to make the legally permissible and impermissible knowable to the citizen in advance. Where there are so many laws that even highly specialized lawyers have difficulty in keeping up with the provisions in their own area of specialism, the rule of law declines, and litigators rush in where common sense fears to pronounce. This superabundance of laws exists in many places around the world today, and needless to say it flatters the self-esteem of legislators and judges. It makes them the arbiters of our existence. It also makes the rest of us wards of the court.

An article in the New England Journal of Medicine offers food for thought about just how enveloping are the tentacles of law once they start gripping our lives.

It concerned a peculiar measure of the Florida legislature called the Firearm Owners’ Privacy Act. This act (at least according to the article) forbade doctors from routinely asking their patients about their ownership of firearms kept in their homes, or “from unnecessarily harassing a patient about firearm ownership.” The authors found the law preposterous, and so it seemed to be, for more than one reason.

When it was challenged by a group of local physicians, the main legal grounds were that it violated the Constitution’s First Amendment. The Eleventh U.S. Circuit Court of Appeals struck the legislation down, but its jurisprudence in doing so seems to me fraught with possibly dangerous consequences.

I quote from the article:

The state argued that FOPA’s effect on speech was merely incidental to the regulation of medicine and therefore not subject to the First Amendment. The court, however, disagreed; it held that “speech is speech, and it must be analysed as such for purposes of the First Amendment.”

Nothing could be clearer than that. The court seemed to hold that Florida had no right to tell doctors what they might or might not say to or ask their patients.

But then the waters began to muddy: “As the court explained, the state relied on anecdotal evidence [that it had an overriding interest in the matter], and ‘there is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective.’ ”

The first ruling, then, that speech is speech, was not quite what it appeared to be. On the contrary, all speech is equal, but some speech is more equal than other speech.

If it could be shown that what a doctor asked was “ethically problematic,” apparently he could be legitimately prohibited—by the legislature and/or the court, not by his professional body—from asking it. It wouldn’t, mind you, have to be shown to be ethically wrong, only “ethically problematic,” in order to justify the legislature from acting and the court from backing up that action. And since what is ethically monstrous today is ethically required tomorrow, and vice versa, with every stage of development in between, the case for endless meddling is made out.

Moreover, the legislature and court could presumably declare illegitimate something a doctor was asking if it were “practically ineffective” to ask it. I need hardly point out the difficulties in proving the effectiveness of various kinds of questioning. Here again, a locus standi for potentially interminable meddling appeared to be claimed.

It is difficult to escape the conclusion that the court struck down the law not because it interfered with free speech, but because it didn’t agree with the lawmakers’ view on the particular subject on which the latter were legislating. One suspects that, had the Florida legislature tackled a different subject—had it passed a law forbidding physicians from pointing out the social construction of transsexualism to their patients, for example—the result might have been very different.

The authors of the article say that the state of Florida could not point to any evidence in favor of its ridiculous prohibition because:

The decision to keep a gun in the home substantially increases the risk of death for all household members, especially the risk of death by suicide . . . [and] second, the majority of U.S. adults who live in homes with guns are unaware of the heightened risk posed by bringing guns into a home. Indeed, by providing accurate information about the risks created by easy access to firearms, as well as ways to modify that risk (e.g., by storing guns unloaded and locked up, separate from ammunition), a physician’s counseling can not only enhance a patient’s capacity for self-determination, but also save lives.

I hesitate to point out that the presence of guns may increase rather than decrease a suicidal person’s capacity for self-determination; but the question here is not whether such counselling can have the claimed effects, but whether it does have them. Such is the nature of human perversity that the best of intentions are often subverted by those who are the subject of them; and evidence on the answer to the question might be conflicting, as evidence on such questions often is. It is absurd, as well as dictatorial, for legislators and judges to meddle in such matters.

It might be supposed that those who challenged this law and its preposterous provisions on First Amendment grounds, were the friends of freedom, especially freedom of speech; but I am far from certain about this. For what starts out as freedom to ask the questions prohibited by the Firearm Owners’ Privacy Act may become an obligation to ask them, and prescriptive censorship is actually worse than the proscriptive variety.

Thus the authors’ fatuous pronouncement that: “In recognizing the central role that the medical profession can play in reducing firearm injuries, the court’s ruling highlights the opportunity that physicians have to reduce firearm violence.”

Would it not be negligent for them to fail to do so? I look forward to the first case in the civil courts of a grieving father suing his doctor because he was not told by that doctor that leaving a loaded gun within the reach of his three-year-old son was a dangerous thing to do.

Absurd, no doubt; but satire is prophecy. After all, what are we, adults and infants, but wards of the court?

Reader Discussion

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on August 03, 2017 at 10:09:35 am

"... and needless to say it flatters the self-esteem of legislators and judges. It makes them the arbiters of our existence. It also makes the rest of us wards of the court."

Indeed it does. and yet, cannot the same be said of those doctors who feel compelled to intrude into the lives of their patients and in so doing arrogate to themselves the right to proselytize for their own particular views on the exercise of 2nd Amendment rights. Why not ask about the horsepower rating of my vehicle? They do are potentially hazardous.

Ask about my diet, even tobacco usage, make a diagnosis and then shut up!
I desire to NOT be a ward of the state NOR of the medical profession.

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gabe
on August 03, 2017 at 11:56:35 am

What the good Doctor notes invites a repetition (given below) of the recognition of the actual nature of most "Legislation," and the impacts on the legal system (adjudications):

Law describes, defines, but does not necessarily * delineate* OBSERVED social order and the relationships within it.

Legislation differs from Law, since legislation is only RULES OF POLICY.

Rules of Policy (legislation, regulations, ordinances and their excrescences) are attempts to describe, define AND delineate DESIRED social order and the relationships necessary for it.

Order generates Law. Law does not generate order. It does not delineate relationships. Law results from the identification, delineation, reconciliation (including enforcement) of obligations commonly recognized and accepted within the social orders extant and as they change over periods of time. Those actions may occur within or without an institutional framework. Those social orders which develop an institutional framework may be regarded as having some form of Rule of Law.

It should be noted that any particular social order may be extant, developing and changing within a larger social order – such as among thieves, there may be law; or among physicians, "ethics.".

Confusing Rules of Policy (legislation, etc.) with Law, creates great difficulties when the systems and institutional frameworks that determine Law are employed to give effect to Rules of Policy. This is undoubtedly due to the problems associated with the determinations necessary to delineate a commonly accepted desired social order and the relationships within it. RRS August 2014

Note, from the Doctor's example, the desire to delineate functions of a relationship. Note, the issues for adjudication of those efforts.

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R Richard Schweitzer
on August 03, 2017 at 13:53:50 pm

Yes, and let us also note the "Rules of Ethics" promulgated, propagated and implemented by a *particular* social order, i.e., The American Medical Association and its adherent medical professionals. In this instance, the desired social effect is not necessarily the reduction of "accidental firearm injuries" but rather the imposition of further restrictions on 2nd Amendment rights.

No, you say, the good doctors are only *asking* questions. I reply: "And to what end? for what purpose? How will an affirmative response be *documented.* You may be surprised to find out what is in your medical files - all duly required by Federal regulations.

Also as an example, we now observe that certain heath care providers are refusing some surgeries for smokers.
Shall we see something in the distant future prejudicing the medical options or diagnoses of gun owners?

Who knows? But agin, as Richard says, there are problems associated with delineating the *desired* social order. More to to the point, an M.D. degree does not provide a greater social understanding nor mental capacity to "prescribe" a social order.

Stick to writing scripts for opioids, Doc!

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gabe
on August 03, 2017 at 14:23:47 pm

This question becomes "problematic" for the patient, when a "discerning" physician uses possession of firearms by his patient as evidence of grave mental illness that poses a threat to patient and others, and therefore, operates on his duty to quarantine such a patient against his own will, but for his own good, for psychiatric observation. Furthermore, triggering the confiscation of patient's weapons by police in order to secure the patient's security upon his eventual release.

I know this is the absurd outcome but the author is correct, it is the absurdity in satire that is prophesy.

On face value, I find a physician asking the question to be much less problematic than (law, policy) requiring the patient to answer. If Doc asks me something I find inappropriate or plain out none of his business, I do not answer it, verbally or on pre-exam questionnaires. If my treatment is precluded on my answering questions beyond that which is critical to diagnosis and treatment, I am more than happy to find another doctor.

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Paul Binotto
on August 03, 2017 at 18:07:23 pm

Yep!

Required patient answer would be beyond troublesome.
Yet, is it too hard to imagine that very requirement were the government to take over the entire healthcare system under the guise of protecting young children from firearm injuries.

Like you - I answer only what I want to answer.

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gabe
on August 03, 2017 at 19:13:54 pm

"Yet, is it too hard to imagine that very requirement were the government to take over the entire healthcare system under the guise of protecting young children from firearm injuries." - Indeed, it is already so.

One need look no further than Little Charlie Gard, where state protection went one step further, in "protecting" him not from firearms, but from his parents, and in requiring the state to speak for Charlie while requiring his parents to remain silent..

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Paul Binotto
on August 05, 2017 at 12:55:07 pm

There is evidence that removing the means of suicide - medication for overdose, car keys, firearms, places to jump from, and even privacy - reduces suicide among those who are already seeking help. There is no evidence that firearm removal decreases suicide generally. This might prove to be so, but the data isn't there yet. As to increased danger by introducing a firearm to the home, the claimed evidence is deeply flawed. People in more dangerous places or situations are more likely to purchase firearms. Duh. Introducing a firearm into one's home may well thus be the safer thing to do. Context, context, context. People who live in cold places are more likely to wear mittens. That doesn't mean that wearing mittens causes cold.

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Assistant Village Idiot
on August 05, 2017 at 15:09:27 pm

...For what starts out as freedom to ask the questions prohibited by the Firearm Owners’ Privacy Act may become an obligation to ask them, and prescriptive censorship is actually worse than the proscriptive variety. Thus the authors’ fatuous pronouncement that: 'In recognizing the central role that the medical profession can play in reducing firearm injuries, the court’s ruling highlights the opportunity that physicians have to reduce firearm violence.' "

I believe that the Florida law was passed specifically in response to federal moves during the Obama administration to pressure or even require physicians to ask patients whether they owned firearms.

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pst314
on August 05, 2017 at 16:56:29 pm

In the case of Charlie Gard, the lawyer selected by the court to watch out for his interests was head of a charity that backs Assisted Dying, So, she was protecting him from the tragedy of living any longer.

http://www.telegraph.co.uk/news/2017/07/16/charlie-gards-parents-angry-babys-lawyeris-head-charity-backs/
"Dignity in Dying used to be called the Voluntary Euthanasia Society."
One would think that would have ruled her out. However, objections by the parents were overruled.

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DOUGLAS S WENZEL
on August 05, 2017 at 19:56:19 pm

Ruled her out? _ On the contrary, that was apparently her most salient qualification according to the lights of the European "smart set."

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gabe
on August 05, 2017 at 22:44:28 pm

I want freedom to discuss firearms with my patients, as I grew up in a weaponless household and in my exam rooms I have learned a great deal and have received many helpful answers to my noobie questions

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Hal Dall MD
on August 06, 2017 at 00:53:54 am

[…] legislators and judges. It makes them the arbiters of our existence. It also makes the rest of us wards of the court. An article in the New England Journal of Medicine offers food for thought about just how […]

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Image of Notable Quote - Theodore Dalrymple - GraniteGrok — GraniteGrok
Notable Quote - Theodore Dalrymple - GraniteGrok — GraniteGrok
on August 06, 2017 at 09:48:41 am

What troubles me is that Florida feels the need to pass a law to control what my doctor asks me. It simply is a reinforcement or perhaps more rightly a reflection of where we are as a society. Do I need the government to control what my conversation with my doctor is? No. But we have gone there by requiring her to ask me things. In response then, I get the government telling her not to ask me things because my doctor is like my parent or something. News flash...to all of you who think you need to pass laws to justify yourselves, I am not a child. If and when, which she does, my doctor asks me something I don't want to tell her I don't tell her. On a form when they ask me something that in my view is none of their business I don't answer it. OMG, the infantilizing of us just goes on and on....Get the government out of what she or what she does not ask me. What a concept... So if my doctor can't be prohibited from asking me about gun ownership because of Free Speech, how is she required to ask me about Domestic Violence? Just wondering.....

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Pam
on August 06, 2017 at 19:39:06 pm

So, Doc:

Are you going to go and buy a gun, now that you have your questions answered? Ha! (smiley face here).

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gabe
on August 07, 2017 at 04:01:14 am

In Western Australia, we have very strong licensing, and no licenses can be issued for self-defense purposes. There is no CCW except for Police. We can have club licenses for target shooting or open licenses for recreational hunting or pest control; or collectors licenses.
Police and doctors may well collude to take firearms from patients deemed at risk; and Police deny licenses to people who are on the face able to have them. The instances I have heard of were partly the two professions giving each other cover to do what they believed best for that household. (I am not saying I like this, or that the principle is good).
I would never mention depression or suicide ideation to my doctor, because I want to keep my sport.

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Chris
on August 07, 2017 at 06:21:21 am

Nations with stiff gun control laws, have them (in my opinion), not to protect their citizens from gun violence, (although this might be a secondary motive/outcome), but (primarily) to protect their government from its citizens.

During Abraham Lincoln's address to Congress on July 4, 1861, included were the remarks: "Our popular government has often been called an experiment. Two points in it, our people have already settled,--the successful establishing and the successful administering of it. One still remains,--its successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided, there can be no successful appeal back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war; teaching all the folly of being the beginners of a war." - Source: Speeches & Letters of Abraham Lincoln, 1832-1865. (New York: E. P. Dutton, 1907), 176, 182-3, 200.

I think the definitive words here are, "fairly and constitutionally" ; and nothing in these words suggests that the citizens, when they find they are unable to change a government that has become "unfair and unconstitutional" (no longer governing by the consent of the people), in its actions, by a "fair and constitutional" ensured and honored ballot, that then bullets may not be the proper recourse for the people to change a government that has become tyrannical. In fact, I think Lincoln would agree, as the Founders maintained, that it is a duty to do so.

It's important to note here, the Southern States did argue they were justified in seceding because they viewed the federal government as having acted unconstitutionally; and Lincoln with great vigor would argue that the government did not act unconstitutionally, and therefore, it was the Southern States, who unconstitutionally seceded, demanding and justifying that the government should/must use force to bring the Southern States back into the Union. This is important, because Lincoln was not/did not argue that the States (at the will of their people) were never constitutionally justified in seceding or rebelling against the Federal government.

And, I think, they would also agree that it is (collectively and individually) a matter of grave self-defense to take up arms to protect and preserve, against any tyrannical government, the "unalienable Rights, [to] Life, Liberty and the pursuit of Happiness".

When you say, "no licenses can be issued for self-defense purposes" - I would interpret, as I hope your citizens do and government does, that there can be no license for self-defense, because self-defense is an unalienable right, that the government can neither deny nor license, its citizens - if you have the right (even by the licenses you cite) to hold guns, then, I would argue, you have the right to use that gun in your own self-defense, against equal or greater certain danger (and collectively in self-defense against a better armed government that has become tyrannical).

In fairness, I suppose none of this is to say, that a free people cannot consent, without coercion, to freely give this right up to their government. Only that they do so at their own peril; and that government has taken what would not rightfully or naturally belong to them.

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Paul Binotto
on August 13, 2017 at 01:41:28 am

Not true. In Australia you are not even allowed to own a baseball bat unless you are in baseball club or team. Gun cannot ever be use for self defense.

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Lutz
on August 13, 2017 at 08:46:04 am

I think you might be missing the point of my "is-ought" argument.

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.