Tom Lewis

The social media, among other forums, here in Hampshire and around the country, is alive with the heated expressions of people proclaiming their constitutional rights: to refuse to wear a protective mask or get a vaccination; to crowd into churches and bars contrary to government limitations; to take their guns anywhere they want and shoot groundhogs, trespassers and demonstrators at will; to destroy or defend public statues, monuments and buildings; and to gather wherever and whenever they wish to protest government practices and policies.

Many of these proclaimed rights are not mentioned in the Constitution or in any reasonable interpretation of it. (OK, now that those who believe to the contrary have left us, the rest of us can talk.) And not one of the rights, including those mentioned in the Constitution, is absolute — that is, one that may not be limited or regulated in any way.

From the very beginning, not just of our Constitution but of constitutional law itself, the courts have accepted “reasonable restrictions on the time, place and manner” of the exercise of guaranteed rights.

We have the right to speak freely, but not to falsely yell fire in a crowded theater. We have the right to assemble, but not in a way that impedes traffic or prevents access to public places.

And no one has any legal right whatsoever to ignore regulations and restrictions imposed by duly constituted governments for the purpose of safeguarding public safety. This applies to guns, worship, assembly, speech — everything.

A case in point, as the lawyers say. The state of Nevada, in response to the coronavirus pandemic, ordered attendance at churches in the state to be limited to 50 people.

A church with 90 people in its congregation filed suit to lift the ban as an interference with their First Amendment right to free exercise of religion. Every court all the way to the Supreme Court (ruling 5-4 last Friday) told the church that freedom to worship does not include freedom to ignore appropriate regulation by the state.

A similar California case before the Supreme Court back in May had the same result.

Nobody seems to have been silly enough to go to court to try to establish the nonexistent right to defy public health orders. There are lots of lawsuits around the subject, but they seem to revolve around who has authority to order whom to wear or not wear them.

Individual mask deniers pretty much limit themselves to hysterical rants against store clerks or passersby who inform them of mask policies. A lot of these rants end up on Facebook, where they will be available to view long after the perpetrators have learned to be ashamed of them.

Another frequent subject of posts on Facebook — an eternal favorite of several Hampshire County sites — is the stated intention to shoot trespassers and thieves and drug dealers and demonstrators and Lord knows who all.

Allowing for the fact that almost all of this is empty posturing, it remains a dangerous thing to repeat without an injection of reality.

And the reality is that under American law and the English system of laws on which ours is based, it has never been legal to use deadly force to protect property.

If you shoot somebody who is trespassing in your barn or tiptoeing away with your chainsaw, you are probably going to go to jail. (If you don’t discover, as so many have in these circumstances, that you have just shot your brother.)

Yes, I know about the Stand Your Ground and the Home is Your Castle laws, intended to broaden the legal right to shoot people. Stand Your Ground laws require that the force used be proportional to the threat; establishing that, if possible, will take a long and costly trial.

Both Stand Your Ground and Castle laws differ in important ways from state to state, and to rely on them to relieve you of responsibility for using deadly force is to lean on a very slender reed.

Rights are not simple things that can be easily claimed or conferred. They are complex negotiations with our fellow citizens, conducted over many generations. And they always — always — come wrapped in responsibilities.

(Those folks who left us in paragraph 2 — you can tell them it’s OK to come back in now.)

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