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Abstract

Americans discuss some of the most intimate details of their lives within the small confines of their neighborhood doctor's office. Many Americans, however, may be taken aback if their physician asked them whether they owned a firearm during a routine physical examination. Although most Americans might not consider firearms education to be their physician's primary purpose, a significant number of doctors in Florida, and throughout the medical community, consider promoting firearms safety a part of practicing preventative medicine.

When a group of Florida legislators saw this behavior as a threat to the Second Amendment, gun owner access to healthcare, and patient privacy, they took action and passed the Firearm Owners' Privacy Act (FOPA). FOPA effectively prohibits doctors from asking patients about gun ownership, recording patient gun ownership information, or discriminating against patients who own guns. When physicians challenged FOPA as a violation of the First Amendment, the “Docs v. Glocks” controversy was born. At first, a federal district court ruled for the doctors and enjoined FOPA's enforcement on First Amendment grounds. But then, the U.S. Court of Appeals for the Eleventh Circuit reversed this ruling (twice).

While the Eleventh Circuit's second opinion still leaves plenty of room for dismay over the manner in which physicians' freedom of expression has been limited, instead of focusing on the First Amendment, this Note seeks to focus on what FOPA's enforcement means for Florida and the rest of the country. Focusing on the antidiscrimination and privacy concerns that motivated the passage of FOPA, this Note concludes that the law accomplishes very little. This is because there is no substantial evidence that gun owner discrimination is preventing gun owners from accessing healthcare. Further, if such discrimination did exist, it would be extremely difficult to prove even with the help of laws like FOPA. In addition, gun owner information that may be stored in a physician's computer is no safer under FOPA than it was under the privacy laws that already protect medical information recorded by physicians.

Both sides in this controversy-doctors and gun owners-are misled in their opinion of the harm or benefit created by FOPA. The resources and energy spent arguing over NRA-propagated gun owner discrimination claims and the value of gun ownership information that is privately stored in a physician's computer could be better spent on other issues such as preventing mentally ill individuals from accessing firearms.

After providing a history of FOPA and discussing its failings from a discrimination and privacy standpoint, this Note will highlight some of the progress being made with regard to firearms legislation in hopes that it will encourage such productive activity that helps promote public safety while simultaneously protecting the constitutional right to bear arms. Gun ownership and gun safety do not have to be at odds with each other; they are actually quite compatible.

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