Previous post
Next post
Americans are mostly cooperating with CDC’s “stop the spread; COVID-19” restrictions recommendations. But with no definite end in sight, many are rightfully concerned that temporary restrictions for the outbreak, may become a standard for overzealous government policy. A Nation founded upon the Constitution and the Bill of Rights is coming to terms with what it means in today’s unprecedented circumstances.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
~ Benjamin Franklin
Ben Franklin’s quote originated under a different context, but rings true across the board. Americans, more than any other nationality, bristle at the idea of restricted personal liberty. It doesn’t mean they lack responsibility due their rights, but that government has no right to restrict them. It doesn’t have the (unadjudicated) right to remove liberty from the individual. A quandary that brings us to modern day America, and restrictions placed on citizens by their state and local governments.
Rhode Island’s state motto is “Hope”, and right now they hope all the citizens of New York stay out of their state. The Democrat Governor, Gina Raimondo, has authorized the police to stop any car with a New York license plate. This brings a whole slew of potential Constitutional Rights issues. Steven Brown, from the ACLU of the Rhode Island states in the New York Post,
While the Governor may have the power to suspend some state laws and regulations to address this medical emergency, she cannot suspend the Constitution,” said Steven Brown, the executive director of the ACLU of Rhode Island, in a statement.
“Under the Fourth Amendment, having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver, no matter how laudable the goal of the stop may be,”
The First Amendment. Boom. Number one. Also the case for a recent lawsuit in NYC by a lawyer, who objects to the order restricting assembly of people. The ability to practice his Jewish faith is impacted. His lawyer, Norm Pattis states in the New York Post,
Mr. Cuomo’s threat that his directives will be enforced by law enforcement cause Mr. Nigen to fear arrest if he attempts to travel for any other purpose other than getting medical attention or obtaining groceries, thus impermissibly chilling his exercise of his constitutional rights to travel,” his lawsuit charges.
and contines,
Clearly, there is a grave public health emergency in New York. We understand that,” Norm Pattis, Nigen’s attorney, said in a written statement. “But lawful process matters and emergency orders of this sort, if left unchallenged, will evolve into precedents with horrifying consequences.”
The optics are cringe-worthy, and smack of Nazi Germany, where restrictions applied to Jews was the stepping stone to mass genocide. Of course, this restriction applies to everyone in the city, and one group isn’t singled out. But feelings and facts are often interwoven. An excellent breakdown of the First Amendment can be found here.
The Second Amendment is essential.
Essential business are allowed to stay open during the lockdowns. But what exactly constitutes an “essential business”? In California, it isn’t gun shops. A recent lawsuit by gun owners highlights a mandate to close gun shops. The Los Angeles Times reports,
Sheriff Alex Villaneuva closed gun stores in L.A. County Thursday to everyone except police and licensed security company employees after the governor deemed that firearms sellers are considered nonessential businesses during California’s shutdown of commerce in an effort to limit and slow the spread of the coronavirus.
Planned Parenthood is essential, because killing the unborn saves lives. But those alive have no right to protect their own lives. You know, from all the criminals being released into the community… California, where did you go so wrong?!
Gun shops, according to the sheriff, were one of several types of nonessential businesses that continued to be open and garnered complaints. He said those who don’t comply would be cited and could lose their business license.
The lawsuit implies, that in addition to being Constitutionally protected, firearms are essential.
“Twenty-eight years ago, the LAPD had to withdraw their officers to protect their safety,” said California Gun Rights Foundation Chairman Gene Hoffman. “We hope that the stay-home orders will mean that our public servants will not become infected in this pandemic, but the Constitution guarantees that everyone has a right to acquire arms and defend themselves should law enforcement not be able to respond before it’s too late.”
There are mounting fears that the current measures being put in place will become the precedent for events in the future. What if the virus never “settles down”? What if the seasonal flu warrants similar actions? Where is the line that prevents local and state governments from enacting “emergency” restrictions on citizens? With every new restriction, the line moves further from the freedoms outlined in the Constitution and Bill of Rights.
New York’s Fox5 interviews Larry Gostin, a public health lawyer at Georgetown University. His comments ring true, and I think he nailed it. With increased government surveillance, expanded international travel, and the easy spread of global disease… Americans are right to be wary of precedent setting restrictions.
So far, we haven’t had draconian methods, like armed police blocking people’s movement in the streets, surveillance and phone tapping,” said Larry Gostin, a public health lawyer at Georgetown University. “But we are seeing lockdowns of millions of citizens like we have never seen before.”
He added:
“We are on the precipice of something that could transform American values and freedoms. But courts have never been asked whether the unprecedented lockdowns are constitutional “and in violation of individual rights,” Gostin said. A battle all the way to the U.S. Supreme Court on that issue, he says, may be looming.
I for one, look forward to it. When they’re back in session.
Featured Image: GoodFreePhotos License: Public Domain Image Edit: Squared and Cropped 400×400
John in Indy says: The phone tapping is going on apace, with the CDC “asking” the cell providers for location info on cell phones to “track the spread of, and interpersonal contacts” for the WuFlu.
And about the suit about the right to travel, I think that the right to travel IS Constitutionally protected, though the quarantine required if you do travel is also consistent with the Constitution. And do I recall that Tom Clancy discussed this very issue in one of his books?
John in Indy
Russ Wood says: IN Tom Clancy’s “Executive Orders”, his accidental President, Jack Ryan, was faced with a deliberate spread of biological warfare. On the advice of CDC and USAMRIID, Ryan put the US into lockdown, including suspension of interstate transport of anything except food and medical supplies. When the Presidency was sued on these restrictions, it was argued that “The Constitution was never intended as a suicide pact!” Now, we’re in the same situation for real, and the same argument applies.
By the way, in South Africa, we’ve started a lockdown, and nobody knows whether it will work here!
GWB says: suspension of interstate transport of anything except food and medical supplies
That’s a dumb argument, since the commerce clause would most certainly give the federal gov’t that authority.
Now, they couldn’t lock down individual states internally. That is up to the states.
GWB says: today’s unprecedented circumstances
Not really that unprecedented. But, if you believe history began with your birth (so many do) and that history is some sort of “forward-progressing arc/arrow” (so many do) then pretty much anything disturbs your comfy existence is “unprecedented”.
Instead of punishing the bully who spins the merry-go-round so fast your kid flies off, we banish the merry-go-round.
What’s truly unprecedented? The idea of a zero-risk society. Which is what bureaucrats and other ivory tower types keep pushing us towards.
having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car
Sorry, but without some back-up to this statement, I’m going to have to disagree. When the origin of a person makes them more likely to have an infectious disease, it most certainly IS probable cause. Exactly the same as if a fugitive driving a car with NY plates had been last seen headed to RI.
The real Constitutional question arises as to whether states can control their borders without some authority from the feds. (That one is actually written into the Constitution.)
Right of Assembly The First Amendment.
OK. But we can already circumscribe that right with things like Fire Codes, protest management (you can’t just block the road without permission), riots (various issues there), etc. The difficulty is that those prior restrictions are all identifiable in advance, and “make sense”. Loads of people (like Kim, here) think the restrictions on assembly make sense. I do not, necessarily. (I think they make sense someplace like NYC, where the disease is running wild, but not most other places.) An awful lot of people are skeptical of the efficacy of blanket quarantine. Some people are just contrarian jerks. Deciding between the two requires wisdom – which is in short supply in our modern America.
emergency orders of this sort, if left unchallenged, will evolve into precedents with horrifying consequences
This is so VERY true. But not because the guy is a Jew.
But what exactly constitutes an “essential business”?
Waaaaay beyond the question of gun stores is the question of “who are you to determine ‘essential’?” Isn’t a barbershop in a military town “essential”? How about a bodega? WalMart sells an awful lot of stuff I don’t find “essential” but they can keep their whole store open. The whole attitude that you can determine who is really “essential” in this sort of situation is arrogant.
Constitution guarantees that everyone has a right to acquire arms and defend themselves should law enforcement not be able to respond before it’s too late
And I’m going to disagree, because I think he has it backwards. Everyone has the right to acquire the means (including firearms) to defend themselves. Period. We established the police so that we would have some measure of peace about us and wouldn’t have to take time out of our day to arrest the purse snatcher running down the street. The assumption was that it was OUR responsibility to protect ourselves and those around us – we made police after the fact.
(Why is this important, imo? Because stating it the way he did implies that at some future point where we had a good enough or large enough or whatever police force, we could give away our right to defend ourselves to them. And that would turn us into a surveillance and a police state. The right comes of its own accord, granted by our Creator, not because we just haven’t managed to get an omnipresent police force, yet.)
What if the seasonal flu warrants similar actions?
I guarantee that at least one totalitarian-minded governor (or maybe mayor) will command vaccination and other measures when next year’s flu season hits, because of the “success” in combating Winnie The Flu.
This thing is serious, and we should take measures. But we really need to be more circumspect in our reaction to this bug.
(Why isn’t taking off and nuking Wuhan and NYC from orbit ever brought up? It’s the only way to be sure.)
4 Comments