It appears the gutless members of the Senate committee responsible for consideration of HB 1531 prohibiting physicians from intruding into our privacy concerning gun ownership has killed the bill even though it was passed overwhelmingly by the house 88-11. I seriously believe the bill was killed as a result of the below article in the Virginian-Pilot which probably has the widest circulation of any paper in SE Virginia. I am sure VCDL will let us no which senators failed to support this (9-6 vote).
Bill would bar doctors from asking about guns
By JANETTE RODRIGUES, The Virginian-Pilot
© February 23, 2006
CHESAPEAKE - A pediatrician who asks a child's parent about firearms in their home could lose his or her license or be disciplined under legislation being considered by a Senate committee today.
The bill would prohibit health care professionals from asking a patient about gun possession, ownership or storage unless the patient is being treated for an injury related to guns or asks for safety counseling about them.
Sponsored by Del. Ward Armstrong, D-Martinsville, the bill sailed through the House by a vote of 88 to 11 last week. A message seeking comment was left for the delegate; he did not return the call.
The legislation is opposed by The Virginia Chapter of the American Academy of Pediatrics because it blocks a common practice by medical professionals to inquire about gun ownership and safety when they go over a safety checklist with parents during a child's regular checkups from birth to puberty.
"We saw the bill but presumed no one in their right mind would put it through," said Dr. Leslie Ellwood, chapter president. "We thought it was such an unusual bill that anyone with common sense wouldn't pass it."
The national group is closely watching the bill now.
Some local medical professionals are incensed by the bill and the rapid way it is moving through the General Assembly.
The bill also is opposed by several medical groups, including The Medic al Society of Virginia and nurse associations.
The National Rifle Association supports the bill because it will protect gun owners "from intrusive, unnecessary questions from medical professionals," according to the NRA Institute for Legislative Action Web site.
"We don't have an opinion or issue an opinion on guns," Ellwood said. "We don't say it is a bad thing to have around children. Our plan is always to find out how the guns are managed in the household so they are safe."
The national pediatric group puts out a guide on safety counseling for pediatricians under its injury prevention program.
The state-endorsed guidelines are used by not just doctors and nurses but by others whose jobs involve children.
Medical professionals are encouraged to use the routine safety survey to counsel parents about everything from car safety seats and child-proofing a house and backyard pool to bicycle helmets and fire safety once the child reaches the appropriate age.
Pediatricians use the checklist to curtail preventable injuries, such as poisoning by household cleaning products, not to be intrusive, say Virginia physicians.
"The bill hits at the heart and core of prevention and protecting our children," said Dr. Nancy Welch, Chesapeake Health Department director. "I am just amazed that it has gone this far and seems to be flying under the radar."
A board-certified pediatrician, Welch e-mailed three committee members from the South Hampton Roads delegation after being notified about the Senate committee meeting today.
Sen. Harry Blevins, R-Chesapeake, has a policy of giving each bill a fair hearing before commenting on it, said his legislative assistant, Karen Papasodora-Cochrane.
Sen. Frederick Quayle, R-Chesapeake could not be reached for comment.
Sen. L. Louise Lucas, D-Portsmouth, said she thinks it's a bad bill.
"I don't know how it even got out of the House because a person who is practicing the healing arts, if they really have a child's safety in mind, would ask that question and others," she said.
If parents think the question is intrusive, Lucas said they can always tell the health care provider: "It's none of your business."
Reach Janette Rodrigues at (757) 222-5208 or firstname.lastname@example.org.
This morning HB 1531, Delegate Ward Armstrong's bill to keep doctors
from prying into your firearm ownership, was KILLED 9 to 6 in the
Senate Education and Health Committee:
Voting correctly: Houck, Martin, Newman, Edwards, Ruff, Bell
Voting incorrectly: Potts, Saslaw, Lambert, Lucas, Howell, Quayle,
Whipple, Blevins, Rerras
Ok, I am going to catch heat for this opinion but....
You can say i would prefer not to receive this counseling OR
just say no....
restricting anyone's right to ask a question runs afoul of some other things...
i asked my wife (a pediatrician) about this...
she simply goes through a checklist and asks parents about safety issues...from poison control, to electrical plugs, to car seats, to firearms....
there is no sin in asking the question...and there is no mandated response...so the characterization of this as "prying into gun ownership" is inaccurate...furthermore anything told the pediatrician would be protected through doctor-patient...
i have a problem with being mandated that i have to tell people about my guns....
i simply say "None of your business"...and thats my right...
but it is their right to ask the question...and it is professionally responsible to cover all avenues...people can say no, and they move on...
criminalizing what people can ask or say?
go ahead and flame me....im sure people will...
I pretty much feel the same way as you do. But maybe I'm missing something.
Don't gag doctors about gun safety
Virginia House bill prevents pediatricians from talking to parents about kids and firearms.
The Roanoke Times
Doctors should make a deal with the General Assembly: Physicians won't attempt to legislate if legislators quit trying to practice medicine.
A bill that would gag pediatricians who discuss gun safety with the parents of their patients passed the Virginia House of Delegates last week, and is under consideration in the Senate.
Gun ownership is just one issue pediatricians bring up with parents when going over safety checklists during their children's routine checkups.
That practice would be outlawed under this legislation, and physicians who dared discuss gun safety with parents could be disciplined or lose their licenses.
The National Rifle Association supports the bill because it would protect gun owners from "intrusive, unnecessary questions from medical professionals."
According to the 88 delegates who voted for the bill, that must be more important than protecting children from intrusive and unnecessary gunshot wounds.
The bill is opposed by the Virginia Chapter of the American Academy of Pediatricians and the Medical Society of Virginia.
"We saw the bill but presumed no one in their right mind would put it through," Dr. Leslie Ellwood, president of the Virginia Chapter of the American Academy of Pediatricians, told The Virginian-Pilot of Norfolk. Ellwood underestimated the reflexive desire of Virginia politicians to side with the NRA on everything.
Careless handling and storage of guns is clearly a health and safety issue.
Pediatricians and other health care workers should not face sanctions for merely bringing up the topic -- any more than for asking whether parents use car safety seats.
Ellwood said the national pediatricians academy takes no stance on whether having guns around children is a good idea. "Our plan is always to find out how the guns are managed in the household so they are safe," she said.
Senators should demonstrate more common sense than delegates, and shoot down this ludicrous bill.
That speaks volumes of what they want. I think the best way is to tell your kid not to talk about guns with anyone and make sure a parent is with the child at all times, though I hope this does become law.
I happen to agree with you. Asking if guns are stored in the house properly is a prompt to parents who are gun owners to secure their weapons from small children. It hurts our cause when the press publishes stories of unsupervised children being killed with loaded and unsecured weapons. If the simple question in the office can remind a parent to keep their weapons away from the kids when they cannot supervise them, it promotes responsible gun ownership, and furthers our cause.
And again, you can just prefer not to answer. The doctor will just move on to the next checklist question, like if you wear seatbelts.
I go to the Doctor about broken bones not how to properly store my firearms. Last time I checked we weren't going to Doctor's about the latest and greatest new handgun were we?
I'm sure most doctor's dont know there ass from there hand when it comes to guns, and they are expected to lecture me on gun ownership, and proper storage?
The AMA has taken an official position that gun ownership is bad, and causes health problems, says people are more likely to die with a gun in the house. Bullshit!
The reason we want this gone, is it's not a Dr's position to lecture me on firearms ownership, and as crazy as this world is becoming, suing parents for everything. We don't wan't our guns to be the next thing to be sued over because we told a Dr who knows as much about guns as I do his job to report us to the local police for endangering our child's lives.
so tell the doctor to shutup...its that simple....
legislating what people can and cannot say will not work....
first off, this speech is not an invasion of privacy because it takes place in the course of a conversation that is protected by privilege...
secondly, there is no mandatory disclosure..you dont have to tell the doctor shit, and they have no way of forcing you
thirdly, if this law were to pass, it would die the first time a doctor lost their license, as soon as someone had standing to challenge the law, the courts would strike it down...i can go through the analysis of why this is when I have more time...
in the end, your doctor should not be "lecturing" you about gun ownership...they should be asking you if you want information about safe gun ownership...if they are overly intrusive exercise your right to take your business elsewhere....
the only way the doctor could ever tell the police that you had guns is if there was an IMMINENT danger to a child...i live with a doctor...they take their privilege seriously, damn seriously, trust is crucial to their job...if they violated this standard they lose their license under their professional standards as it is...so the only circumstance your worst fear really happens without the doctor losing his license is if someone told their doctor "Yeah doc, i keep my loaded handgun underneath my 3 year old's pillow"...and you know what? I want that guy getting reported and going to jail...such an activity is against the law in Virginia...and is dangerous...idiots that do that kind of shit are way more damaging to responsible gun ownership when the media gets ahold of it than a group of doctors asking a series of standard safety questions....
last i checked, adults had the right to own cigarettes too...i know my wife always asks if there is a smoker in the house....should we outlaw that question too because it invades your privacy that she asks?
Bottom line - they're talking about asking our kids when we're not around, if I understand this correctly. It's one thing if they ask me (I will tell them to shut up), but to grill my kids when I'm not around and record this information so it is accessible to the government, etc., is really not their business.
As pointed out, it would be one thing if it was coming from someone neutral on the subject, but it's not. Keep in mind too that there are privacy regs that completely exempt the government from procedure (warrants, etc.) for accessing medical records. The privacy issues around recording this information in an accessible format with no protections completely overrides any benefit it may have from "reminding" someone to securely store their firearms.
Maybe you could answer this question for me since your wife is a pediatrician. If one refuses to answer that particular question, are there any notes written in the child's medical record? Something to the effect that the parent is uncooperative. How about if once the Dr. goes into the 'common sense checklist' and a parent were to stop the Dr. short and refuse to answer any questions?
I'm just wondering if a Dr. would make any reference in a medical record about a parent not willing to submit to a 'safety lecture' about common sense things like making sure a child rides in a safety seat, wears a bicycle helmet when riding a bike, guns locked up (I do this, but more importantly to me is my child knowing how to handle a firearm safely and more importantly when NOT to handle a firearm) etc?
I can see the argument on both sides of this issue and I think it'd be easier of just not answering the question(s) at all.
I think VCDL might have taken a more 'oblique' approach and word legislation to prohibit a physician from questioning a child outside of the presence of a parent or to create any record of a parents refusal to answer a physicians questions.
Actually, this wasn't a bill put in on VCDL's behalf. We were not aware of the bill for a week or two after the session started. I'm sure that bill will be back.
I can ask her, but I believe that the answer would be that the checklist went down, and the answers given likely recorded....for the record, though, i dont think a bigger deal is made one way or the other....
for example, a parent with 3 children likely declines ALL of them...having heard the majority of them already...which would be recorded...
i, of course, cannot speak for all doctors, but remember mine is a household with doctors, lawyers, children, AND guns BUT...
I would be stunned if the doctor wrote in GIANT CAPS about the guns...likely it records offered x, y, and z...x and y were declined, z was accepted...
as far as a report to CPS...
Doctors, as well as teachers, and many other people, are mandatory reporters under Virginia law if they believe children are in danger...
IF any of the groups make specious reports they are subject to discipline from their professional committees, as well as possible criminal sanctions for making false reports...
furthermore, how low an opinion of these people do you have? I would never take my children to a doctor I did not trust to have my child's best interst at heart (thankfully, thats not hard for me)...if you really trust your doctors that little FIND A NEW DOCTOR...
furthermore, and this may be the real crux of the issue, just because a bill involves the second amendment does not automatically make it a good idea
if the VA general assembly were to vote to allow handgun sales to minors and criminals it certainly would not be a good idea...
bills like this hurt the pro-gun lobby many times more than it helps it...dear God, give the antis fuel for their fire..."They want to throw doctors protecting children in JAIL!!!"
Furthermore, I go back to my original statement...this law runs afoul of the first amendment...you cannot legislate this kind of speech, and as soon as it was challenged by someone with standing it will die...
I understand your point, and I see where you are coming from, and honestly I would not go to that doctor...
If you went to the pediatricians in my wife's practice I think you would get 2 that have no problem with responsible firearms ownership, one that was neutral, and one anti...so I think the assumption that doctors will look at patients and say all firearms are bad is incorrect...
Personally, there is not a year goes by that i dont hear that some yahoo left his loaded bersa under the couch and his kid blew his/hers/their friend's head off with it...these stories do way more damage to responsible gun owners....and if a doctor saying to the yahoo "Would you like some gun locks? or info on safe gun storage?" can prevent even one of these I think its great...
My problem is not as much with what the law is trying to prevent..
My problem is you CANNOT legislate what someone can or cannot say...it is just that simple....the only cases where this has been found applicable is when the speech is intended to incite imminent lawless behavior or is intentionally trying to intimidate....(see Brandenberg v. Ohio, Virginia v. Black)...this certainly does not fall into either of these categories...
As far as what doctors can say to children over a certain age, you are fighting a losing battle there....birth control, sex, etc. can all be done outside of the presence of the parents...its the world we live in...I know my wife constantly battles with parents who want to stay when their 15 year old daughter asks to talk to her alone because she is worried she may be pregnant...it is just the way things are, and I dont know honestly that they are wrong...
Educate your kids (on sex, guns, whatever) and be aware of who you take them to....I remain convinced, though, that this law is a step in the wrong direction...and is also violative of other constitutional rights
EDIT: I would also like to say how damn impressed I am with my fellow Virginians...had I posted these thoughts on general discussion I fear I would be charred and crispy at this point...not here though, an educational discourse by rational men...its what it should be.....thanks to you all!
This is akin to all of those laws that are passed or failed based upon the current administration. The logic simply doesn't hold up, as it condones the acts of all the rest. A perfect example is how Bush has already proven that we can't even trust someone like him with the powers invoked by the Patriot Act. What do you think Hillary or Kerry would do with the same powers? One has to be very careful allowing (or ignoring) powers granted to someone in authority with the idea that intentions are good, so we should trust them (or, you can simply go somewhere else and let the abuse of authority go on and it won't be a big deal).
Trio - I see where you are coming from, but you also have a significant bias due to your wife's profession and you need to take a fresh look at the situation. To simply say "choose another doctor" sounds great, but is not practical and chooses to ignore those who don't know better. It's kind of like saying "yeah, Maryland's gun laws are completely Unconstitutional, but people can simply move to Virginia, so it doesn't matter." You've also pointed out the biggest problem of all - the fact that all medical records are subject to search by the government at will, and recorded and/or acted on. The possibilities here are endless, and I can tell you firsthand that this power to indiscrimately record medical information is abused quite frequently by our friends at .gov. Do you really trust them not to someday abuse that information? I can cite a handful of incidences in Canada, for example, where information collected "for the good of the children" led to some pretty dire consequences.
(a) I'm not trying to impress or passify the anti-gun lobby. They'll be there no matter what. We need to take the offensive versus playing defense all the time. You don't score playing defense.
(b) If someone is willing to take a soundbite like that at face value and act on it (and I know plenty of people who would), then we're not the problem here. Giving them an excuse to say something that stupid doesn't really matter - they'll spew their ignorant blather whether we give them material or not. Do you REALLY think this kind of thing matters in the end? When's the last time you read a Brady Group press release? Is your suggestion here that we never pursue pro-Freedom bills? "Concealed carry will lead to blood in the streets every time there's road rage." "Carrying in restaurants will lead to alcohol-induced bloodbaths when arguements break out in bars." "The anti-common-sense lobby at the NRA wants our children to learn gun safety and promote gun violence." Name on pro-Freedom bill that can't be distorted and give them a soundbite!! That alone is no reason to slack up.
The first amendment ensures the Freedom of Speech by citizens. I'm no Constitutional expert, but I'm pretty sure it does NOT protect what an employer can say or not to you, and it does not protect what activities one may or may not engage in while in another position of authority. Your claim here could be interpreted to stating that a policeman can ask for naked pictures of your 8 year-old children during a traffic stop. We are not stating that a preacher cannot deliver a sermon stating firearms are bad, or that a guy can't stand on the streetcorner with a sign stating the same. I will fight for their right to do so, as much as I hate what they may say. We're saying that a person in the performance of their duties as a government agent (through the laws dictating reporting, record-keeping and lack of procedural protections) should be limited in their offical capacity to items that pertain to their jobs. This is NOT Freedom of Speech, and is NOT a Constitutional issue. Doctors have no business asking about firearms, it is a ploy of the anti-Freedom medical groups, and absolutely WILL be abused by government agencies who will someday take our children "for their own safety." Remember, what they can't pass into law legally they will enact through other means. They may not be able to mandate "safe gun storage" (i.e. store your guns so you can't get to them in time if you ever need them), but they'll take your kids away under the guise of their own safety. It can and will happen, which is why doctors and .gov should never be empowered to gather this kind of information - with or without us in the room.
Ok, I hate to play lawyer here, but this statement is basically completely wrong. Medical records are not subject to search by the government at will. I have been in a position where I have had to subpoena medical records, while working with the Commonwealth's Attorney, and it is a major pain. By no means is this information available at will. There are actually numerous laws that prevent this information from being available at will. There are even some portions of medical records that are never discoverable, regardless of the circumstances. The government, nor anyone else, can ever gain access to this information.
I also know that doctors take the doctor/patient privilege quite seriously, and they would not freely turn these records over to the government. There have been situations where I have had to explicitely grant them permission to talk to anybody about my diagnosis. This includes even telling someone that I am their patient. I have had situations where one of my doctors called up another doctor to discuss me, but even then between the two doctors they could not discuss my information in great detail because I had not given one of them permission to discuss me. I know that this is not a situation where it involves the government, but I have used it primarily as an example of how doctors take their privilege seriously and would not freely disclose their records to the government.
I notice that you stated that you can tell us firsthand the power to access medical records is abused frequently by the government, would you please enlighten me as to the specifics of your knowledge?
I do not mean for this to sound trite, but the United States is not Canada. Just because something might have happened in Canda does not mean that it is going to happen in the United States. I do not know the medical laws in Canada, but I do know some of the medical laws of the United States.
So your idea of pursuing a pro-freedom bill is to take a position that takes away from a person's Constitutional freedoms by abridging their rights under the 1st Amendment. This will be futher discussed later though.
These two examples you give are only tangentially related to the bill in question. The two type of bills that you mention have to do with actually carrying firearms. The bill in question only has to do with speech. It does not impact your ability to carry or even possess firearms.
I am glad that you started this out by stating that you are not a Constitutional expert. The First Amendment protects the Freedom of Speech of ALL citizens. This includes the freedom of speech of employers and the freedom of speech of people in positions of authority. These individuals are still citizens of the United States and entitled to the same protections as everyone else.
The courts have placed certain types of restrictions on certain types of speech. However, the courts subject these restrictions to a great deal of scrutiny before these restrictions are upheld. For a majority of freedom of speech issues, the applicable standard for determining whether or not the speech can be restricted is strict scrutiny. The restriction must serve a legitimate governmental interest and it must be the least restrictive means possible. The Supreme Court has made the statement regarding this test that the standard is "Strict in name but fatal in fact." This means that it is a very rare instance where a certain type of restriction will successfully pass this test and be held to be unconstitutional.
I see no way that Trio's statements can be interpreted as allowing this type of act. Even if someone tried to do this, there is no way that this action would be upheld. One reason: naked pictures of children is considered to be obscene and therefore not constitutionally protected. Second reason: the police officer would be acting outside of the scope of his authority so there would be no reason to comply with this request. Third reason: in a traffic stop, the officers, without consent, can only search what is in plain sight. I could continue on about how the police could not get this information or make this request legally but I think that my point is made.
It is possible that I am confusing some of my legal standards above, and I can go back and ensure that I have the correct standard in each instance. However, I am not confused about how the court would rule on these questions.
So you will fight for their right to say these things, but you will readily support another bill that restricts the same freedom.
Last I checked the majority of the doctors in the United States are not governmental agents. The doctors in the armed forces or other government entities are certainly government agents, but they still have to abide by many of the same requirements and procedural protections as civilian doctors. I will not state that they have to abide by all of the protections because I do not know rule by rule, but I feel confidant in saying that the majority of the requirements are the same.
Also, just as an aside, if a majority of medical doctors were considered government agents, then the big controversy over rising medical malpractice insurance costs would not be an issue. Government agents are generally exempt from many lawsuits for acts done in their official capacity. The government cannot be sued without their consent.
So a bill that restricts what someone can say or ask is not a freedom of speech issue, and therefore is not a constitutional issue? I would venture the opinion that any bill that restricts a person's ability to ask questions is a restriction on speech.
I don't even know how to begin to respond to this statement. There are so many things wrong with this, ranging from the anti-Freedom medical groups to the government taking our children. In regard specifically to the taking of the children, the Constitution would prevent this type of seizure because it would be unreasonable. If you want to provide examples of this assertion that support it, then I can respond to those.
If the government cannot mandate how you store your guns, how can they take away your kids under the guise of their own safety. I would say that mandating how you store your guns is a much less intrusive law then taking children away.
Again, a majority of doctors are not government employees. If you have an issue with the doctors asking this question, simply do not answer it. There is no way that the doctor can compel you to answer this question.
I hope that no one takes this post as a deliberate attempt to belittle Black Fox. I am not trying to do that. I just read this response and I felt the need to respond to his many points.
I'm glad you could lend another perspective. I'll try to respond to your basic points, but understand I'm not going to get into a long drawn-out argument with somebody on the internet over this because the finer points of medical information protection and Constitutional law aren't the points we're trying to make here. Trio stated that (paraphrasing here...) (1) this was a Freedom of speech issue, and (2) wanted to know why anybody would defend something that could save children's lives and had minimal downside. We don't all have to agree with what I'm stating. I'm merely trying to show that (1) we don't all agree this protected under the Freedom of speech, and (2) some of us think there are significant downsides and that it's an inroad to future abuse. You appear to have very strong feelings about this, which makes me guess you're either related to trio or are in the medical industry. I will tell you that I don't have any personal stake in this game, and only responded because people appeared confused about why we'd want this bill passed.
I'll go out on a limb and say you're talking about State government, not Federal? Two very different animals. State government doesn't have access to library records, internet logs and a number of other things granted to .gov under the Patriot Act and other similar bills.
I'm glad to hear your doctors were so conscientious. Most doctors have you sign a consent form before you begin your first visit. I know I've actually read my forms, and it basically gives them permission to share my information on an "as needed" basis. Besides, we all know that doctors are required to report anything "dangerous." What happens in a few years when they pass safe storage laws and unsecured firearms or firearms without operator recognition devices are considered "dangerous?" This is also kind of like when the 16 year-old kid at Radio Shack personally guarantees you that your address and phone number will not be sold to marketing agencies . I'm not comparing doctors to 16 year-old pimple faced kids. I'm simply saying that in most cases the doctor doesn't control that information once it's electronically stored - it goes to insurance companies and other places where their respect for doctor/patient privilege doesn't mean much.
We simply can't think of this situation or others in a vacuum. We can't assume doctors have good intentions, and this information will never be used for any purpose than "safety information pamphlets." History has shown this not to be true in other very similar situations (think "OnStar," library records, internet eavesdropping, SmartTags, etc. etc.).
Just so you don't think I'm avoiding the fact you asked, no, I won't get into specifics. I will state that I'm a information security specialist and have done a bit of work in the health care industry as well as other areas.
Did you actually just actually say "it can't happen here?"
You think human nature changes the minutes you cross over some imaginary line a few hours North of here? You think throughout history governments haven't consistently expanded their power at the expense of their citizenry if allowed to? You don't think it's in the ultimate self-serving interest to eliminate all firearms (i.e. power) from the hands of civilians? You don't think they'll resort to taxes on interstate commerce (i.e. NFA 1934), executive orders or other adminstrative techniques (import bans, reinterpretation of "sporting use," etc. etc.) to achieve these ends? You don't think library records or internet/e-mail usage records or medical records that detail who has firearms and how they're stored will ever be used? Did you not think we'd ever use the powers "granted" for spying on suspected terrorists on our own citizens? I'm sorry, but if you really think that these (often computer-recorded) records would never be abused, then let's just summarize by saying we're coming from very different directions.
Come on - you know what I'm getting at. I was responding to the comment 'dear God, give the antis fuel for their fire..."They want to throw doctors protecting children in JAIL!!!"' The suggestion that we should base our Freedom and the pursuit of it based upon what our proverbial enemies will try to use against us and what soundbites they can create is silly. The other soundbites I mentioned were what antis said about some fantastic Freedoms we now enjoy. I'm not suggesting we trample over other Constitutional Rights in our frenzy to acquire more firearm-related Freedoms, and I think you know that....
I disagree - Freedom of speech does not apply to everyone in any capacity just because they're a citizen, any more than it's completely irrelevant to people visiting this Country from another. Yes, there are tests applied within our judiciary branch in the interpretation of this Freedom. So? I don't believe the Freedom of Speech protects people serving in a position of authority, and you've given me no reason to change my mind. People acting in a position or authority or responsibility have a scope of their role and limits upon what they should act upon. I can give lots of silly examples to make my point, but we may simply have to agree to disagree on this one?
Aha! And I think we've identified two key points here:
(a) asking for anything isn't illegal if we're following your strict interpretation of Free speech right? How can you tell someone what they can't ask for, right? It's their Right, correct?
(b) "police officer would be acting outside of the scope of his authority so there would be no reason to comply with this request." So at least you acknowledge there is a scope of authority. You simply state there's no reason to comply. Are you really saying that this action would not be protected by the Freedom of Speech because it's outside the scope of their duties and they're acting in an official capacity? Do you still not see what this example is about, and how I could construe trio's comments in this way?
You may notice the part in parenthesis right beside the part about "government agents," because I knew that would be blown out of proportion. There are laws that dictate that doctors tell the government about things the government deems important, there are laws that dictate they keep records about their interactions with patients, and there is a lack of procedural protection against the FEDERAL government's collection and use of this information. You and I apparently disagree on the procedural protection part, but so be it. I consider this as close to a government "information agent" as there can be, though.
I'll simply state this:
(1) most medical organizations that I'm aware of (again, no expert, but still have an opinion based upon facts I've seen so far) are self-professed as anti-gun. I'd love to see something that shows me wrong, because I really don't like the conclusion I've come to here. That doesn't mean all or even most doctors are - the organizations that sponsor these "safety checklists" are.
(2) social services takes children from their parents every day under what I would often call "questionable circumstances" and then leaves other children in obviously dangerous conditions. I don't have a lot of time to dig up internet examples, but I guarantee you that if you were interested in finding examples of this you wouldn't have to look hard, and a lot of these examples have to do with firearms or access to them.
There are three responses to this that I think have been made clearly in previous posts -
(1) we're talking about them asking our children and family members (distant relatives?) when we're not around.
(2) we can't assume everyone will ignore this question, as many people aren't as saavy or concerned about their privacy. We as Americans are rather cooperative people, and by default will answer questions like this.
(3) just because we can ignore it (or simply "go to another doctor"), doesn't make it okay.
I hope this doesn't get us completely sidetracked, but what do you think about the BATFE agents and local PD officers who went to people's homes who were buying guns at the gunshow? Do you feel their questions to spouses or neighbors about "where do they store their guns?" "how many guns to they have?" "do you know your husband's buying another gun at the gunshow today?" and "did you know your neighbor has guns?" were okay? I'm curious, as I think that example was more acceptible in some ways as firearms were at least within the scope of a BATFE agents duties. ...
If you want to be taken seriously, you need to consider these statements. You haven't "hurt my feelings" or anything, but these silly attacks and accusations you've sprinkled your response with call into question your true motives here - i.e. that this is personal to you, and you're really not interested in having a discussion but making a point.
I am NOT suggesting we take any citizen's Freedom of speech away. I actually believe the Bill of Rights and Constitution was created to protect citizens from the government - not the other way around. We may disagree about what these documents say or mean, but please understand that my intentions are to protect Freedom and I'm not suggesting we trample one for the other.
You know - anybody can get up in front of people who don't know a subject and sound like an expert. It's in an audience where you'll be challenged, questioned and presented with different sets of data that you'll actually learn. I've been called to the carpet plenty here for saying something I thought was the case that ended up not being accurate, and have no problem admitting it. A Constitutional expert may step in here and tell us the Freedom of speech protects anything a police officer, doctor or anyone acting in an official capacity may ever say or ask, and I'll eat some more crow. That's fine - I'm always willing to learn. In the end, I hope the people who weren't sure about the point of this bill walk away with an understanding of why it's good or bad and why people from different perspectives support it or not.
I will take some time to respond to this, but I fear this may degenerate further and do not want that...
First, Civprod learned of this thread because we are in the same law class...we will both graduate in May and sit for the bar in July...
Second, many of my opinions (and Civprod's I'm sure) are based in knowledge gained through our workings with the law...I am currently actually in a seminar called "Civil Rights and Liberties"...I have brought this article up with the professor, a 1st Amendment law expert who has argued more than 25 cases in front of the US Supreme Court, and he agrees with me (I emailed him between my first and second posts above to give a timeline)...this law does run afoul of the first amendment...
I would like to say, in my defense, that I firmly believe in the 2nd Amendment...but they must be taken in conjunction with the others...you cannot abridge one freedom in order to protect another...when we have gotten in trouble in this country has been when we have attempted this...at any rate I digress...
My final points...
1) I have read both the original and revised patriot act many times over...there is nothing in its text that I can find that abridges the privilege afforded medical records, or makes it easier for the government to access them...it does broaden the instances in which the government may still request a subpoena...but the circumstances are still the same, just cause (in this case involving terrorism) must be show to a court of competent jurisdiction before the records can be granted...and even then some of it is absolute privilege...
2) The first amendment protects all speech that is not intended to incite imminent lawlessness or whose purpose is intimidation...in my second post I cited cases like Bradenburg v. Ohio and Virginia v. Black that articulate these very opinions...these are U.S. Supreme Court cases...
There is no exemption for people in authority....in the case of a police officer there are official sanctions if he abuses his authority, many under the 4th amendment protections of illegal search and seizure, but the police department does not and cannot say "You cannot say these words..."
As far as employer-employee...the Congress, under the auspices of the Commerxe Clause, have carved out very specific exemptions to some things...but these are very, very specific and would not apply in the doctor-patient relationship....think things like asking religious or sexual preference.....again, though, these are specific pieces of legislation created by Congress...remember that what ended segregated private business was the commerce clause, not any of the amendments...the 14th only applies to state action, and the 5th to government (due process issues)...neither of these apply to private ventures, and so it was under the auspices of the Commerce clause that Congress and the US Supreme Court made it illegal for a small BBQ restaurant in the south to deny service to blacks....
3) Sometimes the phrase "it cant happen here" applies....we have far greater personal libetties and freedoms, and far greater checks on infringements of them, than people in other countries, including Canada...YES, by crossing that border your rights and liberties immediately change...its why millions of people have flocked to our shores over the last one and half centuries....
4) I trust the system....I swore an oath once to Protect and Defend the Constitution of the United States...it may be one of the prouder days of my life...and I wore that uniform and BELIEVED...i still believe, years after my medical discharge, and now that I have taken a new profession...it is one of the reasons I went into the law...because here, more than any other place, it protects the people....and if you do not believe that, no offense, but there is nothing I can say, because my arguments stem from the law, and a love for it....
5) I have been a soldier, a teacher, a profiler for the state police, and now a lawyer...my wife, as all know, is a pediatrician, my mother has been a teacher and a principal for 30 years...in all of our experience I have never seen the government take children for frivilous reasons and without cause...it does not happen...for this you will need to provide specific examples...
6) In the end, could something be abused? Possibly, but what would your recourse be? To challenge any intrusion as a violation of the law...and thats why it is there....
In the end, of course, this is moot...the Senate subcommittee killed the bill...thanks to all and have a good day
Very cool, trio. I think you have some great points.
I'll definitely have to look into first amendment case law - you may be spot on there based upon your references . I still think (whether it's Constitutional-based or not) that there are some things we should/should-not condone people asking in their position of authority, and this may be one of those things.
I guess I'm just tired of the government intrusion into my children's and my lives - from the tests they ran without my permission on the day they were born to the carseats we have to put them in until they're almost teenagers now. I may be more supportive if these safety questionnaires started at the top of the CDC's "most likely to accidentally kill children" list and worked their way down to guns. I bet we'd be asking people about how they store power tools, 5 gallon buckets, locks on bathtub faucets, secure storage of car keys and a number of other things before we ever got to firearms - which again is why I say this is political in nature and not just about my children's safety.
I agree with you completely about (#3) the environment we enjoy in America. I still think it can and will happen here, and is something we should be vigilant of ("it" being abuse of information gathered through legal means with good intentions). The things going on right now in the news are good examples, and the possibility is definitely there for "innocent" information collected by doctors.
I appreciate and applaud your service, and will gladly buy you or any other service member a cold one. You guys do too much for too little, and we all benefit from it. Sounds like an interesting career progression you've made!
I have seen examples of children taken from questionable circumstances and left in dangerous ones. I don't want to talk about my experiences with family members on the internet in front of strangers, but let's just say I've seen it. I just make the point that there are potential dangers with the misuse of this information.
Understand that while the overall architecture of our Country is nothing short of phenominal (3 balancing branches, etc.), some of us still have apprehensions about trusting the government to govern itself in all cases, and don't share your level of confidence that nothing bad will ever happen unchecked. If it did that well, we wouldn't have several of what I deem abuses above (1934 NFA, "sporting clause" reinterpretation, 1986 MG ban, etc.). However, your point is very valid, and we would certainly see a test against these guidelines.
In the end, you're also right that we're beating each other up over a non-issue at this point. I don't mean to sound as paranoid as perhaps I do above - I generally think we have it pretty good, and this subject is not worth nearly the effort and inspection of other Virginia bills that are still alive as we speak. Just wanted to present some food for thought....
I will agree that the state and federal government are two differnet animals. I have never worked in the federal government so I do not know what the process is like for getting medical records there. It may be very different, but I think that medical records are still very protected in the federal system. Again, I am not speaking from experience in this situation.
I too have read the consent forms that you are required to sign and I have actually questioned my doctors extensively about these forms in the past. The fact that you are giving them permission to share your information as needed, such as to bill the insurance company, does not mean that they disclose the entire file to the insurance company. I have questioned multiple doctors about what they give to the insurance company and they have pretty much stated every time that they simply send the insurance company the bill listing the services performed and the amount owed. They do not send the entire medical record to the insurance company.
I agree that doctors are required to report anything dangerous, but the situations where they must report are very limited. Merely answering questions about gun ownership and storage should not be enough to trigger mandatory reporting, unless there are very serious safety concerns. For example, if you were to tell the doctor that you own several guns that are always loaded which your children have free access to, know nothing about firearm safety, and regularly play with these loaded firearms would be sufficient to trigger a mandatory report by the doctor. I do not think that revealing you own firearms and how the firearms are stored to would be enough to trigger mandatory reporting. I would think that there has to be very obvious problems with firearms safety in the house to trigger mandatory reporting.
I cannot speak to what exactly would happen at this point.
I would just like to point out again that in my experience insurance companies do not get sent the entire medical records, at least not in my experience. From what I have seen of my own insurance records and the insurance records of others only the doctor and the bill amount are always provided. Sometimes the services rendered is included as well, but the insurance company reports, in my experience, are not the full medical record. The information that is sent to the insurance company is very limited and I do not think that it would typically include anything having to do with the child safety checklist.
I will take your word that you have seen such abuses,
I am not say8ing that it cannot happen here. I am saying that simply because it happened in Canada does not mean that it will necessarily happen here. Canada and the United States have two different systems of government and approved powers the government can exercise. Simply because Canada has a certain power does not mean that the United States government has that same power.
The powers of government are nearly always abused by those in power. But I do feel that the United States has a system of government that does a very good job in limiting and correcting these abuses when they occur.
I am not naive enough to say that the powers will never be abused, but I am idealistic enough to believe that these abuses will be corrected and the constitutional freedoms of the citizens will be protected.
I don't have the information about the freedom of speech of people in power at a place where it is readily accessible so I will try to respond to this later on tonight. I will just restate my opinion that the freedom of speech applies to those in a position of power as well as normal citizens.
You are correct, in my interpretation this action would be protected by the Freedom of Speech; however, you just would have every right to refuse their request since it is outside of the scope of their authority.
I see how you might construe Trio's comments in that way, but I believe that the above example is a different situation. The request for the pictures is in no way connected to the purpose of the stop and there is no reasonable explanation as to why the officer would want this information. The question about guns during a safety run through for your child is related to the purpose of the checklist because it helps to identify potential areas of concern regarding your child's safety.
I cannot specifically speak to the stance towards guns of most medical organizations, so I will not address this at the time.
In regard to point number (2), when I originally read your post I construed your comments about the government taking away our children in a different manner. I do agree that social services will take children away from situations that they deem to be unsafe. However, to bring up a point that you made earlier, social services is a state government program not the federal government program so there is a big difference in the amount of information that "may" be readily available to them.
I will not deny that social services probably takes away children at times because of issues with firearms, but I think that those situations probably require egregious errors in gun safety. I do not think that the majority of the responses that parents will give to the firearms question will be sufficient enough to trigger the mandatory reporting requirement on the part of the doctors and therefore this information will never get to the hands of social services.
In reference to point (1), I believe that these safety checklists are asked of the parents during the checkup of their child. In that instance, you will be around and free to not answer the doctor's questions. In my own upbringing, at least one of my parents was at every one of my well check's for the majority of my childhood so they would have been able to answer those questions.
In reference to point (2), I agree that many americans will answer questions like this by default. However, I do not think that the consequences that you are afraid of will result from answering one question. I believe that in order for some of these consequences to occur, there will have to be very serious concerns that would trigger the mandatory reporting requirement, but the threshhold is quite high for this.
In reference to point (3), the fact that we can ignore something does not make it ok. However, in this situation, I do not believe that there are any serious wrongs about this question to begin with so there really is not anything to ignore. I think that the people who have a major concern about this are free to see another doctor, for those individuals who do not mind, they can continue to see the doctor.
I do not feel that the actions of the BATFE agnets or the local police officers were acceptable. I do not believe that the agents or the officers possessed any reasonable suspicion that is necessary in order to conduct the type of investigation that they were doing.
I feel the opposite of you in one regard, I believe that this type of infranction is more serious then the questions from the doctor. In this case, the agents and the police were acting outside of the scope of their authority and were invading a person's privacy. Even worse, the person typically did not have a chance to respond to this invasion.
I feel that the questions from the doctor is within the scope of the visit. You take the child to the doctor to make sure that everything is ok with the child. The doctor asks questions on the safety of the checklist to help ensure that your child remains ok. Both the check up and the safety checklist are in the interests of the child's well-being, and as such I feel that the two are more closely related then the actions of the ATF.
Honestly, I have no dog in this fight. This is not personal to me. I do not have any children to look out for so I will never be asked this question, or at least I have not been asked this question whenever I have seen the doctor recently. I was really just trying to interject my view into the discussion and also try to discuss in several areas how I would think that the law would act.
My post was made with the intentions of having a discussion; I was not trying to make any point other then demonstrating my point of view.
Now that I think about it, I do feel that my comment that about your being a constitutional expert was unwarranted, and I apologize for making it. I did not mean for it to be an attack or accusation, I just responded that way because you yourself said that you were not a constitutional expert and I felt that your interpretation of the constitution departs from the interpretation of the Constitution by the Courts.
My questions concerning your willingness to protect one person's right from taking away rights from another certainly was not intended to be an attack or accusation. The reasons for those responses was to highlight what I perceived to be inconsistincies or fallacies about the argument that you were making. They were not personal attacks, they were more of logic attacks. I apologize if you did perceive these to be personal attacks, I did not mean them to be so. Those comments were an attempt to bolster my argument by demonstrating what I perceived to be flaws in your logic.
I don't really think that we disagree with what these documents mean; I think that the disagreement is really over the scope and interpretation of some of the documents. I believe that we both have the same fundamental belief of what the Constitution and the Bill of Rights stand for.
I have no problem with my arguments being questioned and challenged, and I will do my best to respond to these challenges. I am not trying to put myself out as an expert in all areas. There are several areas that I believe that I admit that I do not know that much about. Even in regard to the 1st Amendment and freedom of speech, even though I have spent alot of time discussing and learning about these areas, I still do not perceive myself to be an expert. I may have a greater understanding into standards, case law, and interpretations then other people, but by no means am I an expert. I am just arguing for my position while drawing upon the interpretation as I see them.
Since I do not really have a dog in the fight, I was pretty much posting for the same reason as you. I wanted to voice my opinion on the issue so that people can decide on whether or not they think that my argument has credibility to them.
ETA: I am glad to see that once again Trio has the ability to put things much more succiently and elegantly then I can.
I would also like to apologize. I know that many law students and lawyers are regarded as pompous assholes, and I think that much of this is an unfortunate result from law school and the legal system. It almost always is an us versus them situation and in many instances I will come off arguing far too strongly for my side and sometimes step on some toes. That really was not my intent.
Just an FYI - a good article that VCDL distributed in refernce to this discussion:
My wife and I just ran into the gun ownership question on a questionnaire at our first trip to the local pediatrician with our new baby. It appeared to be a standard form,so I wasn't too put off by it. I
While this looks to be well meaning regulation, I'd question it's value since it treads somewhat close to free speech issues.
Pediatricians have a right to ask, I have a right to not answer the question or simply to give a false answer. So long as I have the right to refuse to answer coupled with no consequences, I'm perfectly ok with someone else being able to ask whatever they want. If it becomes a legal issue,as car seats now are, I'd be in total opposition (as I am opposed to mandatory child safety seats-not the seats themselves,as my baby uses one-just the mandatory part).
Just wanted to disagree with the red portion of the letter. The American Academy of Pediatrics is an extremely anti-gun orginization. You can read their position on firearms here.
Let me quote their conclusions:
So either Dr. Ellwood is completely ignorant of the position of the orginization she represents, or she is deliberately misstating it.
Yeah...or she is incorporating her own personal opinion...it is possible to be a member of an organization and not agree with all its tenents....
i know I am Roman Catholic and, boy let me tell you, talk about disagreements...
Along the same lines, my wife is a pediatrician and a member of the AAP...we have 2 small children...and we have handguns, rifles and shotguns in the house
Wow! I visited this thread early ... and ignored its reappearance until just now. I promise y'all, especially the 'second wave' contributors, that I will invest (at least) as much time into re-reading and studying your contributions as you put into writing them. This has already, and will continue, to contribute to my education, for which I thank all of the previous contributors.
And now a comment or three from the peanut gallery, especially for those ...
... who might just be pre-disposed to suffering from it-takes-a-village-itis which presents with a very strong patellar reflex (aka knee-jerk reaction, e.g., "if it's for the good of children, then it must be good"),
... who purposively or otherwise contribute to the idea that parents should not 'own' their children, and responsibility for their children's actions,
... and who (if of my vintage) ignore the upbringing 'enjoyed' by children who reached majority in the early 70s and prior -- and who now behave, for the most part, in a civilized manner -- compared to the respectful, courteous, gallant youth of today ...
Please do good with your own children. As you see fit, treat them like little adults, whom you can 'teach' virtues as well as right-and-wrong in a scholarly or academic manner. If it is your wont, instill in them their own preternatural importance in all things. Cater to their whims, believe everything they say, and remain convinced that children are of nature, golden, unsullied, and incapable of sin, much less wrongdoing. (I believe you're more apt to create a monster than a model citizen, but it's your child and, therefore, your call.)
If you still have a surfeit of good to bestow on others of God's creatures, directly help abandoned animals or even others' children, especially when these "others" think and act like you. Go ahead and adopt some children to ease that pain in your heart over so much worldly tragedy. Or get a little less personally, but still directly, involved saving the hundreds if not thousands of children dying everyday throughout this world. And by "personally," I mean don't bleat about what others should do, or how the problem is best fixed. DO something.
Here's a suggestion. Find a family that is getting by, and doesn't seem to need a hand. Establish your bonafides to this family's parents, and then offer to assist on this family's terms. Offer to watch their kids, while the parents take a little break from their own hand-to-mouth existence (of three jobs between the two of them) as they struggle to succeed in their private version of the American dream. Let the parents go watch a movie, or play miniature golf, or otherwise have fun -- of their choosing -- on your dime, unencumbered with your morality. Let them take a short respite from their burdens, while you watch and care for their kids. (This type of direct action would earn you my esteem and respect, what little that it's probably worth in the grand scheme of things.)
Over the years I've come to believe that this whole issue "for the sake of the children" is more about trying to win arguments than about children. Arguments about philosophies, religions, or mores (in which an individual's claims can be refuted based on their own merits, or lack thereof) are impossible to counter by making the argument a child-safety instrumentality. Rather than arguing merits, the object is to place one's opponent in a position of advocating against children, instead of one in which they can advocate their own claims. BAM! Argument won!
Do you staunch defenders of a physician's "right" to ask about firearms in the home believe that anything the doctor asks will be more significant to the adults involved than what went into their private decision to arm themselves? Do you truly believe that the behaviors of the archetypal knucklehead, thug, or baby's mama will change based on asking the child such questions? Puhleez.
The very fact that a doctor (or other person in authority) addresses firearm ownership in the same vein as other bad and scary things is a textbook example of the PETA-style inculcation of children that has been going on for at least the last decade. If you choose to delude yourself believing that this is 'only for the good of the children,' then I'll just have to say OK. It's a free world. Knock yourself out. You talk to your doctor as much as you want. But do keep your sanctimony in check with respect to the rest of the world. Demonstrate with your direct actions your concern ... and let the rest of the world survive or perish as it deserves.
Privacy in medical records? Yeah, maybe. The Health Insurance Portability and Accountability Act (HIPAA) privacy rules, and other efforts, have purported to redress this problem. Concurrently, clearinghouses for information that are outside of HIPAA's mandates have emerged. And the data/information in these clearinghouses is resold to industry and government. Legally.
The model that is being followed is the one that has been so successful in the credit reporting world. The simplistic summary of information that a credit report from any of the credit bureaus is backed up by the underlying data (much of which is unlawful for government entities, or even law enforcement, to collect) keyed to named individuals. A uniformly formatted checklist applied industry-wide (i.e., by board-certified pediatricians) will be reduced into an automated record, and will be associated with the child as well and his/her siblings and parents forever. And it will be correlated to any number of things in an inconceivable number of ways 10, 20, 30 and more years from now.
Once the information in these questionnaires is recorded, we can not even begin to imagine what it will be used for in the future. Be sure of one thing, however. This information is being purposively gathered, stored, and linked. It will be used in the future. And at least some of the uses will not be palatable. And I'd hate such questionnaires even if they didn't say anything about firearms, unless the only authorized uses of the results was concurrently published, along with a prohibition of unauthorized uses.
All of these efforts to model populations today, will have significant consequences 20 or 30 years from now. If the RKBA efforts only coincidentally combat this trend, then so much the better. When our children detect the magnitude of the misuse, it will not be any consolation to anyone concerned that 'no one told us it was going to be used for this.
As long as doctors want to be some sort of (thought police) auxillaries (the closest I can come to a perjorative German word, Hilfsscheriff, used to describe guardians of public morality reminiscent of a Nazi-Germany-era Blockwart or the DDR reporting system), and this is heralded as a 'good thing' then let's make it better.
I've got a suggestion for a couple of more questionnaires that children should be confronted with. I volunteer to write the questionnaires, because I can ensure that the questions are impartial and don't have any other than their immediately apparent significance .
It doesn't take a village. It takes parents.
Children need parents (foster or otherwise). If children don't have parents, then they need a parent. If they don't have a parent (foster or otherwise), then they need to be cared for in the manner that the society deems necessary.
Society is for adults. Abridging society 'for the sake of children' is just plain wrong. Children should be protected from any ills of an adult society by their parents. Parents' authority, responsibility, and rights in this regard should be reinforced by society ... and not undercut a la "it takes a village."