Second Amendment

By Tommy Tobin*

Starting this August, Texas law will mandate that the state’s public colleges and universities allow the carrying of concealed weapons onto campus. Next academic year, many individuals with concealed weapons will be able to walk onto campus, into classrooms, and around students as long as they have the requisite concealed weapon permit.

The so-called “Campus Carry” law has sparked considerable controversy. An influential dean has left the University of Texas’ flagship campus in Austin, citing the law as the primary reason for his departure. A Nobel Laureate will bar handguns from his course, regardless of potential litigation. The University of Houston was roundly criticized for a slideshow that asked faculty to “be careful discussing sensitive topics,” limit their access to students outside of class, not “go there” if they sensed anger, and drop controversial topics from their curricula.

While the law provides mandates for public institutions, private colleges and universities may opt-in to Campus Carry. According to the Texas Tribune, each private university that has addressed this issue has decided not to allow concealed weapons.

Texas state officials, especially Attorney General Ken Paxton, have interpreted the law broadly. The Attorney General recently delivered an expansive Advisory Opinion, which found that public institutions could not bar handguns from dormitories or individual classrooms. According to the Attorney General, university community members whose rights have been limited could file a legitimate suit against university officials. While the Advisory Opinion does not carry the force of law, it is persuasive authority for state courts examining this issue.

The state’s public institutions must follow the law’s mandate. The University of Texas’ Austin campus has recently released its much-debated Campus Carry rules. Among other things, the new rules will allow guns in classrooms and largely ban guns from dormitories. Even so, concealed weapons will be allowed in common areas, family members visiting dormitories will be allowed to carry firearms, and staff members working in the dorms may also be armed. At least one advocacy group, Students for Concealed Carry, has already noted that it will “shift its focus to litigation” against these new rules.

Advocates on both sides are lawyering up for a protracted legal battle. On one side, university community members argue that they are exercising their constitutional rights. On the other, advocates like Gun Free UT are concerned at increased likelihood of violent activity on campus with the increased number of weapons.

Texas is not alone. In the wake of high-profile campus incidents around the country, numerous state legislatures have discussed proposals to allow concealed carry on their college and university campuses. Lawmakers in Georgia have recently passed a Campus Carry bill, which is awaiting its Governor’s signature.

If public universities intend to foster dialogue, debate, and even disagreement, do guns promote campus safety or undermine it? After calling it an “odd issue” and “very confusing,” one public college system spokesperson provided an excellent articulation of the Campus Carry controversy: “We’re basically encouraging people to express their opinion and engage in debate, and have a place where controversy can be explored and discussed. And generally, having weapons in those kind of environments is not considered a good thing.”

Texas courts and the nation’s state legislatures will soon decide just how “general” that consideration has become in today’s America.

* Tommy Tobin is a Teaching Fellow at the Harvard Economics Department and a student at Harvard Law School.

Image By Alian Gear Holster – http://aliengearholsters.com, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=38499632

By Thomas Tobin *

Lawyers and doctors are both trained to ask their clients uncomfortable questions. We expect that the questions these professionals ask will help them reach more informed determinations for their clients. Lawyer-client and doctor-patient relationships have special legal significance as the open exchange with these professionals often elicits private information that should remain confidential. Unfortunately, a recent Florida law has put lives at risk under the guise of protecting private information.

Signed into Florida law in June 2011 by Governor Rick Scott, the Firearm Owners Privacy Act has worked its way through the courts over the past four years. The Act quickly became so controversial that it has been dubbed the “Docs vs. Glocks” law. Among other things, the Act prohibited healthcare practitioners from making written or oral inquiry into whether a patient owned a firearm unless the health professional had a “good faith” belief that the information was relevant to that patient’s medical care or safety. Healthcare professionals who inquire about gun ownership without such a “good faith” belief risk sanctions, including fines up to $10,000 or the loss of their licenses.

Within a week of the Act’s signing, a group of physicians and other plaintiffs brought suit in the Southern District of Florida arguing that the law restricted physicians’ constitutional rights. The District Court granted enjoinment of the enforcement of the Act, finding a violation of First Amendment rights and that the Act was void for vagueness.

The 11^th Circuit disagreed. In the first of its two decisions on the matter, the 11^th Circuit found that healthcare professionals have no “generalized interest in being able to speak freely.” The Harvard Law Review recently warned that such an interpretation could lead to “a fundamental alteration of American citizenship.”

The 11^th Circuit’s second opinion concerning the law was no less problematic. The majority opinion found that states may define the boundaries of “good medical practice.” With this understanding, the Circuit Court declared that:

“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…” (emphasis added).

The NRA warmly welcomed the 11^th Circuit’s “commonsense conclusion.” The NRA’s Chris Cox labeled this case a “common sense ruling.” According to Mr. Cox, it was simply “not a physician’s business” whether a patient owns a firearm. Such assertions stand in stark contrast to the views of the medical community.

Contrary to the 11^th Circuit’s view, it is common sense that doctors are well-positioned to know what constitutes “good medical care.” The American Medical Association, the American Academy of Family Physicians, the American College of Physicians, the American College of Emergency Physicians, and the American Academy of Pediatrics each oppose the Florida law. These groups support the ability of healthcare professionals to counsel patients about safer firearm ownership as part of patient care.

Doctors’ conversations with patients can make gun ownership safer. An important aspect of responsible gun ownership is keeping guns locked, unloaded, and out of reach of children. All too often, these practices are not followed and the results can be deadly. In one study, many parents reported unsafe gun storage practices. In talking with their patients about gun storage, doctors can improve safe gun ownership. One research article found a substantial positive impact in storage habits and practices among patients after a brief discussion with a family physician. In that study, those that received a brief conversation with their family physician about gun storage were nearly twice as likely to improve gun safety in their homes compared to the control group.

The 11^th Circuit has created dangerous precedent that other states may follow. Fourteen states have considered similar laws. Three states—Montana, Minnesota, and Missouri—have already passed weakened versions.

What can be done? As the American Medical Association’s Journal of Ethics put it, “To protect children, physicians must be able to educate gun-owning parents and guardians about safe gun storage.” One thing is for sure—the 11^th Circuit’s recent decision will spawn further debate and deliberation in statehouses and courthouses across the country about what constitutes “good medical care.”

*Thomas Tobin is a student pursuing a joint JD/MPP degree at Harvard Law School and the Kennedy School of Government.

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