The Limits of Freedom

I was reminded after my father died that he was an NRA member - Baltimore SunThe current debate in opposition to mask and vaccine mandates explicitly and implicitly resonates with a notion about freedom, or to be more precise, restrictions thereon. At its July 2018 convention, the nation’s Libertarian Party platform set forth in a preamble the following:

We, the members of the Libertarian Party, challenge the cult of the omnipotent state and defend the rights of the individual.

We hold that all individuals have the right to exercise sole dominion over their own lives and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose.

“Sole dominion over their own lives” is a reasonably clear definitional statement of the principle that is repeated on many occasions by individuals and elected officials. It is tested and challenged in political and social contexts where “the equal right of others to live in whatever manner they choose” clashes. For example, with respect to mask and vaccine mandates, the equal right of others can be expressed as one seeking to live free of infection or transmission of a virus. It is a matter of fact, that, in Virginia, vaccine mandates exist and have existed for school children for many years.

Fifty-four years ago, in 1968, the federal government (omnipotently) required auto manufacturers to include seat belts in all new vehicles in all seating positions. A letter to the editor of a Wisconsin news outlet stated, “As long as the life risked is his own, I believe the individual should decide whether or not the use of safety belts is wise.” 

Fifty-four years ago, in 1968, the federal government (omnipotently) required auto manufacturers to include seat belts in all new vehicles in all seating positions. A letter to the editor of a Wisconsin news outlet stated, “As long as the life risked is his own, I believe the individual should decide whether or not the use of safety belts is wise.” 

Another mandate, auto liability insurance, first appeared at the close of the 1800s and in 1927, Massachusetts adopted mandatory legislation. Through the 1950s, most states had joined the mandate. An internet search fails to disclose a “freedom” opposition to required auto liability insurance. Common sense may have overcome any criticism that the choice of an individual to decide to choose such a risk in the event of a collision was reasonably one to live in “whatever manner they choose.”

The individual and employer mandate provisions of the Affordable Care Act were hotly contested and debated. An article in The Hill posed the issue as one of freedom of choice versus one of responsibility (ACA court case is about freedom of choice vs. responsibility | TheHill), perhaps perfectly capturing the mask/mandate clash and the Libertarian value.

“[T]he cult of the omnipotent government” referenced by Libertarians is a perception that often arises from distrust of the fundamental exercise of government authority characterized as its “police power.” The term relates only indirectly to the notion of a police agency or force but to the authority to enact laws to define the conduct of a citizenry for the public good, e.g. zoning laws, health protections, safety, and general welfare. Often the exercise of the police power conflicts with more powerful commercial interests such as gambling, and gaming enterprises previously deemed contrary to the general welfare.”

On February 15, the media carried the report of a $73 million settlement of the now-bankrupt Remington gun manufacturer with a group of families whose children were slain in December 2012 in Newtown, Connecticut. The lawsuit was commenced as a violation of the state’s Unfair Trade Practices Act as wrongfully marketing the automatic rifle used in the shooting. . . . The settlement may be received as a signal to lawmakers that the public good is better served by a requirement for firearms owners to acquire liability insurance to cover personal injury, deaths, and related damages from the use of their possessions, similar to auto liability insurance. Selection of the arms industry manufacturers and dealers for immunity while mandating seat belts and liability insurance from auto manufacturers and owners is at best a contradiction and, at worst, an inconsistent measure of public policy goals.

In other instances, the exercise of the police power may be met with more than a freedom principle and be challenged as a constitutional infringement. On February 15, the media carried the report of a $73 million settlement of the now-bankrupt Remington gun manufacturer with a group of families whose children were slain in December 2012 in Newtown, Connecticut. The lawsuit was commenced as a violation of the state’s Unfair Trade Practices Act as wrongfully marketing the automatic rifle used in the shooting.

Remington’s main defense rested upon the 2005 Protection of Lawful Commerce in Arms Act, which was passed to immunize manufacturers and dealers from civil liability when criminal conduct arises from the use of their products. The legislation abrogated the jurisprudence of several hundred years holding manufacturers liable for their commerce. The plaintiffs asserted that the defendant negligently entrusted consumers to utilize an assault-style weapon generally for use only by the military or law enforcement.  

The settlement may be received as a signal to lawmakers that the public good is better served by a requirement for firearms owners to acquire liability insurance to cover personal injury, deaths, and related damages from the use of their possessions, similar to auto liability insurance. Specific selection of the arms industry manufacturers and dealers for civil immunity while mandating seat belts and liability insurance from auto manufacturers and owners is at best a contradiction and, at worst, an inconsistent measure of public policy goals.

At the end of January, San Jose, California, passed an ordinance requiring owners of firearms to extend their homeowner or auto insurance to cover registered firearms. A few weeks later, a similar measure was introduced by members of the Los Angeles City Council. The public’s appetite for increased firearms controls polls at its lowest in many years.

Unlike Virginia, California is not a Dillon Rule jurisdiction, applying the proscriptive doctrine only to certain municipalities. The political calculus for a Commonwealth town, city, or county to emulate San Jose must consider the state’s firearm culture where 86 of its 95 counties declared themselves to be second amendment sanctuaries. At the same time, although Virginia recognizes the police power for localities, its manifestation and judicial support has not been broad.  At present, the Commonwealth expends over $5 million annually, mostly tax funded, through the Crime Victims Compensation Fund.  Presently, the General Assembly is considering the creation of a $10 million Mass Violence Care Fund, a total of $15 million of insurance for its citizens.  

The true contest is, of course, between the public good (how many deaths will it take) and the political will to ensure a safer environment. Any discussion will draw clashing views from those asserting government intrusion into personal freedoms and those favoring compromise of absolute freedom to protect the larger society. At present, the twain is far apart. However, in the real world, there are limits to freedom. As stated in the article cited above from The Hill, the other side of the freedom equation is responsibility.

 

 

 

 



Categories: congress, crime and punishment, gun control, Issues, legislature, National, politics, RULE OF LAW, State

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