Finding Where Your Rights End and Mine Begin

I get annoyed by inane government rules and being told what to do by officious clerks.  I have always had a small authority problem.  I’ll wager I am not alone in this, but a developmental task toward adulthood is recognizing this as a personal failing.  It is not evidence of some natural or constitutional right to be ornery.

Let me cut to the chase.  “Individual rights” extremists have distorted what it means to live within a society of other people. Yes, this is America, the land of liberty.  But an individual – even an American – has no constitutional right to live his or her life in such a way that it endangers or injures another person.  When we choose to live among other people, we surrender some of the liberty we would otherwise retain if we lived in the wilds of Idaho.

Take property rights, for example.  In Jefferson County, West Virginia, where I live one often hears that people have the right to use their own property the way they see fit.  This is as much wishful thinking as anything, but it is wrong.  It flies in the face of 500 years of Anglo-American legal history.  A person has the right to use his property as he sees fit only so long as it doesn’t destroy the quiet enjoyment of his neighbor’s property.

Most of us have a grip on this concept — not even the most ardent rights fanatic would claim a constitutional right to locate a nuclear waste dump on his property.  People who move to fancy subdivision communities with architectural restrictions know they can’t even paint their house the color they choose – but this is the price for living in that community.

Mandatory vaccination is another area where the community’s right overcomes even a sincerely held belief that vaccinations might be harmful to the individual.  Mandatory vaccination laws have been upheld against constitutional challenge since 1905, when the Supreme Court upheld a law requiring smallpox vaccination.  In Jacobson v. Massachusetts the Court said

[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

And how about highway speed limits?  Anyone who claims a constitutional right based in personal liberty to drive 110 miles per hour on the public highways would rightly be considered a dangerous crank.

An obvious current issue involving the clash of individual liberty with community safety is the requirement of wearing masks in public places during the pandemic.  This requirement exists in West Virginia by order of the Governor and in many other states and cities, but is routinely disregarded by people on personal liberty grounds.  While the Supreme Court has not dealt with the constitutionality of mask requirements, it did deny an injunction against a California rule limiting the number of people at public gatherings, including churches, during the pandemic.  The attack on this rule was based, in part, on the supposed right to liberty. But this right yielded to the state’s “police power” to ensure safety.  So, no, you do not have liberty to refuse a mask when doing so endangers my health.

I can safely say that there are no more important rights in the pantheon of American rights than those created by the First Amendment.  In the First Amendment, the Constitution explicitly says that the government shall not infringe the right of free speech.  The text sounds absolute but, in fact, free speech rights have always been regulated as to time, place and manner of exercise.  Furthermore, whole categories of speech have simply been declared “not protected” by the First Amendment.  Hate speech and obscenity are two examples.

The point is that a right to personal liberty, which is not explicitly created in the Bill of Rights and has no clear contours, is not absolute either.  It must be, and is, subject to limitations like all other constitutional rights.  The only mention of a right to liberty is in the Fifth and Fourteenth Amendments, which deal with how a person may be deprived of that right – by due process of law.  These Amendments don’t tell us where the right might actually apply.

This leads me to the subject of guns.  Gun ownership and display have been traditionally limited and controlled by the federal and state governments in the public interest.  An example is the 1938 National Firearms Act imposing a $200 tax and a registration requirement on machine gun ownership, which was upheld by the Supreme Court against a Second Amendment challenge.  The Amendment makes clear that the militia, and thus the gun ownership that supports it, are to be “well regulated.”  Gun rights fanatics like to ignore this first clause of the Amendment because it is inconvenient to their personal rights argument.

By a one-vote majority in The District of Columbia v. Heller (2008), the Supreme Court found an individual right to possess a firearm and to use it for traditionally lawful purposes, such as self-defense within the home.  This case invalidated gun control legislation for the first time in American history.

But if a right exists to parade around in public places openly carrying assault weapons, it is not a product of the Second Amendment.  And it is not supported by any constitutional right of personal liberty.  Even the West Virginia Bill of Rights provides no support.  It says only:

A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

So if you are a gun-packing Second Amendment enthusiast, we need to know where your rights end and mine begin. This language from the Heller opinion will help:

The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . . . [This] opinion should not be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

For the moment you have some cover from the West Virginia legislature. But do not think that your “liberty” to walk around intimidating people at polling places and government buildings with a military assault rifle over your shoulder is secure forever. Your snake flag won’t help you on this one.