0:03

From the JAMA Network, this is JAMA

0:05

Clinical Reviews, interviews and ideas

0:07

about innovations in medicine, science, and

0:10

clinical practice. Here's your

0:12

host. Hello,

0:15

and welcome to this JAMA Clinical

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Reviews podcast. It's my pleasure today

0:19

to speak with Professor Joseph Blocher

0:22

from the Duke University about this

0:24

important article that's coming out in

0:26

JAMA, guns, hospitals, and sensitive places.

0:28

I'm Dr. Fred Rivara, Editor-in-Chief of

0:30

JAMA Network Open. Professor Blocher, can

0:32

you introduce yourself, please? Thanks

0:35

so much for having me on, Dr. Rivara. My

0:37

name is Joseph Blocher. I teach at Duke Law

0:39

School, where I am the Senior Associate Dean for

0:41

Faculty and also co-direct the Center for

0:43

Firearms Law, which is a center dedicated to

0:45

broadening and deepening the scholarly discussion

0:48

about firearms law. Let's

0:50

start off with why you decided to write about

0:52

this issue of fire-ups in hospitals. You

0:55

mentioned there were about 240 shootings

0:57

in hospitals over a 17-year period. Frankly, that

0:59

doesn't sound that many. There

1:01

are far more shootings that are occurring at

1:03

other public places like schools and churches. So

1:06

why talk about hospitals? Yeah, I mean, I

1:08

give one specific answer and a general one.

1:10

The specific answer here is the credit goes

1:12

to my fantastic co-authors on this piece. Joshua

1:15

Romero is at the UNC School of Medicine.

1:17

Daniel Aaron, an MDJD, teaches at Utah. And

1:19

Professor Richard Saver, who teaches at UNC Law

1:21

School, teaches law and medicine. Among the four

1:23

of us, we are all personally close, as

1:25

are I'm sure many people listening here, to gun

1:28

violence on university campuses or at hospitals. Here

1:30

at Duke, just two years ago, we had a

1:32

fatal shooting at Duke University Hospital, a couple

1:34

hundred yards from where I'm sitting right now. UNC,

1:36

there was a prominent shooting in 2023 that

1:38

disrupted my co-authors' training. He was at the hospital

1:40

and had to leave. One of my other co-authors

1:43

had to cancel a class. Dr. Aaron teaches

1:45

at Utah, where concealed carry is allowed on campus.

1:47

So we're all very close to the issue.

1:49

And it's true that in the broad scheme

1:51

of things of American gun violence, shootings in

1:53

hospitals may not be the front lines in

1:55

terms of where the shootings happen. Obviously, it's

1:57

where so many people are treated. But

2:00

I think that's all the more reason to

2:02

focus on regulations that can keep them safe

2:04

and can hopefully keep the threats down. Now,

2:06

the 240 shootings over a 16-year period isn't

2:09

necessarily as much as you might see in

2:11

other public places. The reports, and we

2:13

refer to some of this in the article, are that the

2:15

violence may be getting worse. One of the studies we report

2:17

between March 2021 and 2022, there's over 100% increase in

2:22

nurses reporting that healthcare violence was getting worse.

2:24

Once violence involves guns, it's intensified, and you're

2:27

much more likely to see fatalities. So I

2:29

have to say that data regarding hospital shootings is really

2:31

hard to come by, which I think just

2:34

highlights the importance of gathering that data as

2:36

well as the legal implications of it. Yes,

2:38

I know that even our hospitals out here

2:40

in Seattle, we have problems with the nurses

2:42

reporting increased level of violence against them, whether

2:44

it be in the emergency departments or particularly

2:46

in the psychiatric units. So

2:50

we're all looking for ways to reduce gun violence. You

2:52

focus on the issue of hospitals as, quote,

2:55

sensitive places, end quotes. Can you explain what

2:57

does that mean? What do the laws say?

3:00

It's really great that you put it in quotes there for listeners. It's

3:02

a legal term of art. So that phrase,

3:04

sensitive places, comes from a

3:06

2008 Supreme Court decision called District of

3:09

Columbia versus Heller. And this is where

3:11

the sort of constitutional law and policy

3:13

meet in our article. And what the

3:15

Supreme Court said in Heller was that

3:17

although there is an individual constitutional right

3:19

to keep and bear arms, there are

3:22

certain kinds of restrictions on that right,

3:24

which are consistent with the Constitution. One

3:26

of them, the court says, is restricting guns

3:29

in what it calls sensitive places.

3:31

It didn't say a lot about, well, what

3:33

are the sensitive places? They say schools, government

3:36

buildings. But what about other things? What about

3:38

polling places? What about stadiums? What about bars?

3:40

What about airplanes? There's lots of places you

3:42

can imagine might be considered sensitive. And that

3:44

was a pretty sleepy area of constitutional law

3:47

for almost 15 years. There were

3:49

not a lot of litigated cases challenging

3:51

restrictions on guns in, for example, bars

3:53

or, for that matter, hospitals. But there

3:55

are laws on the books. About 20

3:57

states have laws restricting guns in hospitals.

4:00

hospitals or in other specific healthcare settings.

4:03

After the Supreme Court's 2022 decision

4:06

in a case called Bruin, all that

4:08

stuff came to the fore and people

4:10

started to challenge the constitutionality of restricting

4:12

guns, including in healthcare settings. A major

4:14

case which we talk about in the

4:16

article called Antonyuk, which has worked its

4:18

way up just to the Supreme Court

4:20

level so far, involved exactly that. Is

4:22

it constitutional for a hospital to keep

4:24

guns off of its premises? I

4:27

imagine for most medical professionals, that's just

4:29

a strange question. Of course, that's got

4:31

to be consistent with the constitution. The

4:34

way the Supreme Court has set up Second

4:36

Amendment doctrine, it's not enough

4:38

to say this is good policy or

4:40

this would save lives of either patients

4:42

or physicians or other professionals. You

4:44

have to also show that the restriction

4:46

is, in the court's words, consistent with

4:49

historical tradition. That's

4:51

where our article picks up to try

4:53

to explain why, in our view, hospital-based

4:55

gun restrictions are consistent with history

4:58

and therefore hospitals can constitute sensitive

5:00

places under the constitution. We

5:03

take this as an opportunity for you to explain to

5:05

our listeners this whole issue of

5:07

historical context that was central of the Bruin

5:10

decision and that might be important

5:12

going forward. We'll talk in a minute about

5:14

the Supreme Court decision. That's going to be

5:16

announced any day now. Yeah,

5:18

just as we're recording, it could be coming

5:20

out in any moment. The court decided in

5:23

this 2022 decision, New York State

5:25

Rifle and Pistol Association versus Bruin, is that

5:27

gun laws, in order to be constitutional,

5:29

have to be more than just good

5:31

policy. That is, you can't just say, hey,

5:33

this gun law saves a lot of

5:35

lives or that it's very useful in

5:37

preventing crime. You have to show

5:40

that it is, again, in the court's word,

5:42

consistent with historical tradition. Now, that's

5:44

an unusual test. I mean, the court often looks

5:46

to history, but it's rare that it asks

5:48

questions at that level of specificity when

5:51

it comes to history. As you can

5:53

imagine, it has raised all kinds

5:55

of problems for all kinds of gun laws, including

5:57

the one pending before the court right now. And

5:59

partly that's just because the world has changed so

6:01

much since 1791 when the Second Amendment

6:05

was ratified. I mean, current federal law

6:07

prohibits loaded weapons in aircraft cabins. There's

6:09

no coherent answer to what James Madison

6:12

thought about that in 1791. They

6:15

just didn't have that conception. So there's

6:17

a lot of analogical reasoning going on

6:19

in the courts as they attempt to

6:21

apply this test. And I think that's

6:24

what will be required for

6:26

evaluating, again, restrictions on guns

6:28

in hospitals, which did not exist in

6:30

their current form in the late 1700s. And

6:33

so you have to look for analogs, things

6:35

that were maybe arguably relevantly similar. And again,

6:37

we go through some of this in our

6:39

paper, but it is one of the strange

6:41

distortions of this historically inclined Supreme

6:44

Court that requires what we lawyers would

6:46

often refer to as originalist reasoning, even

6:48

when it comes to something as

6:51

anachronistic as asking, can you prohibit guns

6:53

in hospitals? In 1791, there were no

6:55

hospitals. The standard issue gun was a

6:57

black powder musket, just a totally, totally

6:59

different world. So given this,

7:02

are metal detectors in hospitals allowed or are they

7:04

illegal? Certainly the framers didn't

7:06

see those coming either. One of the

7:08

things that's actually come up in some

7:10

of these sensitive places cases is that

7:12

metal detectors, magnetometers actually are good evidence

7:14

that a place is sensitive and therefore

7:16

guns can be prohibited there. Now, how

7:18

that fits into that originalist reasoning, I

7:21

think, is very hard to say. To

7:23

me anyway, those are evidence that a

7:25

place is sensitive because it faces a

7:27

heightened risk of danger or something like

7:29

that. But you're not going

7:31

to get there by just looking exactly to

7:33

the historical record and trying to decide whether

7:35

Almshows in the late 1700s were similar or

7:37

not to hospitals. I mean, in our view,

7:39

the relevant comparison has to do

7:42

with the populations being served with the potential

7:44

heightened risks of danger. And that's what matters,

7:46

not did hospitals in 1791 prohibit guns. Does

7:50

anyone challenge the ability of a hospital

7:52

to have a metal detector? Not

7:54

that I'm aware. Many hospitals don't fall

7:56

within the purview of the Second Amendment

7:59

or the Constitution. at all.

8:01

And the Constitution only applies to the

8:03

government. It only applies to public actors.

8:05

So a purely private hospital can make

8:07

these decisions as a matter of policy

8:09

and they won't be subject to constitutional

8:11

challenge. But of course, so many hospitals

8:13

and other healthcare facilities are public actors,

8:15

government actors and therefore are subject to

8:17

these kinds of rules. And

8:19

if a state were to pass a

8:21

law, as again almost 20 have done

8:23

restricting firearms on healthcare premises, then those

8:25

laws could be challenged and have been

8:27

and thus far have been upheld. But

8:30

as with many other gun laws, I think there's an

8:32

element of sort of holding one's breath here, which again

8:34

is why the four of us wanted to write the

8:37

article now. And even though many hospitals

8:39

are private hospitals, not for profit, they

8:41

all take Medicaid and Medicare. And so

8:43

they still might be under government control

8:45

in that way. Exactly, exactly. And one

8:47

of the really hard things here is

8:49

just getting the, just going back to

8:51

your first question about how do you

8:53

get your arms around the scope of

8:55

the problem. Again, data is hard to

8:57

come by about actual shootings, but I

8:59

would imagine, in fact, I will just

9:01

say there's must be so many more

9:03

incidents that don't actually involve a

9:06

shooting, but do involve, for example, the brandishing

9:08

of a gun or just the display of

9:10

a gun. And that itself doesn't necessarily result

9:12

in an emergency room visit above and beyond

9:15

whatever brought people to hospital in the first

9:17

place. But it can 100% change the way

9:19

a physician goes

9:22

about is it her day or the way

9:24

that other patients respond? And those kinds of

9:26

not necessarily shooting related physical harms, I think

9:28

also should factor into the calculus, how it

9:31

distorts the whole workplace. We are

9:33

taping this on June 18th, 2024. And your article

9:35

is published on June 26th, 2024. The

9:39

Supreme Court may have already announced a decision on

9:41

another important Second Amendment case. Can you tell

9:43

us about that case and why its view is

9:45

so important? Yeah, it's United States

9:48

versus Rahimi. And it's a challenge to a federal

9:50

law, 18 U.S. C922

9:52

G8, which prohibits gun

9:55

possession by people subject to

9:57

certain domestic violence restraining order.

10:00

The petitioner in that case, Sakhi Rahimi, had

10:02

been found by a judge to present a

10:04

credible threat to his then intimate partner and

10:06

so it was prohibited from having a gun.

10:09

He challenged that restriction as a

10:11

violation of his Second Amendment rights

10:14

and a lower court, the Fifth

10:16

Circuit Court of Appeals, applying that historical

10:18

test from Broome that we talked about

10:21

earlier, found, indeed, there

10:23

are no analogs in the late 1700s to

10:26

the modern law that disarms people under domestic

10:28

violence restraining orders and you can imagine lots

10:31

of reasons why that might be. In the

10:33

late 1700s, women had no right to vote.

10:35

Domestic violence was not treated with the seriousness

10:37

that it is today. So the Fifth Circuit

10:39

struck down this law and said you cannot

10:42

prohibit people like Sakhi Rahimi from possessing guns.

10:44

The Supreme Court agreed to hear the case.

10:46

They heard oral argument in November. I

10:48

believe the government will probably win and that

10:51

the court will say something

10:53

more about how reasoning from

10:55

history doesn't require finding historical

10:57

twins. You can find

10:59

principles in history to guide without

11:02

looking for specific one-to-one comparators, which

11:04

again comes back to the argument we're making in

11:07

this piece about hospitals, right? That the relevant question

11:09

isn't, did hospitals prohibit guns

11:11

in 1791 but were guns prohibited

11:13

in places where there was thought

11:15

to be heightened danger or at-risk

11:17

populations, for example, schools, for example,

11:19

maybe it was one of the places where there's

11:22

a robust history of denying guns. And

11:24

so if the court in Rahimi says, okay,

11:27

in 1791 we didn't disarm domestic abusers

11:29

but we did disarm other groups thought

11:31

to be dangerous, dangerousness is our principle,

11:34

then that should resolve the Rahimi case and would help,

11:37

I think, give some guidance on the hospital question as

11:39

well. And just for our listeners, one

11:41

of the reasons that the Rahimi case is so important is

11:43

that two-thirds of deaths among

11:45

women, violent homicides among women are

11:47

due to domestic violence. And

11:50

most of those involve firearms. I'm sorry. They're all

11:52

firearms, as I was going to say. So it

11:54

really has major implications for us as health care

11:56

providers because we do see those

11:59

patients in our emergency. departments in our

12:01

hospitals. We see the children who are

12:03

oftentimes correlate victims as well of domestic

12:05

violence. So it really is important. Professor

12:08

Bolker, before we end up, are there any things you

12:10

want to mention? No. Again, I just

12:13

wanted to give credit to my co-authors who really

12:15

carried the laboring oar here, especially Josh Romero, who's

12:17

been just absolutely wonderful to work with. And thanks

12:19

so much for having me on, Dr. Arvaro. It

12:21

was really wonderful to talk about how the Constitution

12:23

and policy interact or don't in ways that affect

12:26

us all. Well, thanks very much. It was great

12:28

to talk with you. This episode was produced by

12:30

Shelley Stephens at the JAMA Network. To

12:32

follow this and other JAMA Network

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podcasts, please visit us online at

12:37

jamanetworkaudio.com. Thanks for listening.