Let’s begin by quoting a source I rarely quote, and rarely agree with, Antonin Scalia. In D. C. v. Heller he established the individual right to own firearms under the Second Amendment of the U. S. Constitution. Late in his majority opinion, at the first sentence of Section III, he made a point of reminding us of one of the basic principles of all liberty rights.
“Like most rights, the right secured by the Second Amendment is not unlimited.”
Scalia went on to name a few particulars, including health and safety regulations that disallowed firearms at certain locations and events. Please allow me the legal and poetic license to take Scalia one step further. He did not discuss at length the use of firearms, but that too is properly restricted by laws that remain in effect post-Heller including the requirement for hunting licenses, concealed carry licenses and laws against firearms being discharged in certain locations. Scalia would have no problem with any of these restrictions on the “liberty right” contained in the Second Amendment.
The current debate over “liberty rights” is not about gun rights, but about vaccine requirements and mask mandates. Before diving headlong into questions of masks and vaccines, let me share my introduction to the world of “liberty rights” as explained by my father when I was 9 or 10 years old. Bear with me if you have heard this before. “Your right to flail your arms in the air ends where my face begins.” My father had other restrictions on my “liberty rights” having to do with parental authority, but that’s another essay.
At its core “liberty rights” are bounded by how the exercise of those “rights” adversely impacts, or may adversely impact, others. Back to the firearms analogy. If one takes a gun into the woods and randomly fires bullets around, where no one else is or can be harmed, a “liberty right” is being exercised. Random firing assumes you are not hunting without a license, killing livestock or otherwise creating a public nuisance (it’s the retired lawyer in me that makes me do these disclaimers). Now place the same act, random firing of bullets from a gun, in a crowded super market. Still a protected “liberty right”? Hardly. Now it is criminal reckless endangerment, attempted assault with a deadly weapon or any number of other crimes which will escalate should anyone be actually injured. But, even without actual injury, it is a crime because of the location and circumstance. Once the health, welfare and lives of others are endangered, or may be endangered, you have crossed the boundary of what constitutes a “liberty right”, and have entered an area rightfully subject to regulation.
Lest you think that equating gun violence to potentially transmitting a deadly disease is a step too far, it is not. Wikipedia, that great and democratic fount of knowledge, advises that there have been at least 168 criminal prosecutions for the intentional infecting of others with the HIV/AIDS virus – up to and including charges of attempted murder. Not all of these laws and prosecutions were appropriate in my opinion, but that, too, is fodder for another essay.
Do you have a “liberty right” to go into the woods alone and spew your atomized breath about? You probably do. Do you have the “liberty right” to spew your atomized breath about a crowded grocery store contrary to store policy or contrary to legal governmental mandate…or to suck in the atomized breath of other potentially infected individuals to take home and pass along? You do not. The same is true for ignoring, violating or falsifying information to subvert vaccination requirements. And those who suggest that they are exercising their personal liberty or (as some politicians proclaim) protecting the personal liberty of their constituents by positioning themselves against vaccine requirements, both private and public, and/or mask mandates, both private and public, are not only spewing their atomized breath about; they are spewing Constitutional nonsense.
Be safe.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.