WILL LIBERALS LOVE THE 2d AMEND’T IF IT PROTECTS THEIR RIGHT TO WEAR A FACE-MASK?
WHY THE FIRST AND SECOND AMENDMENTS PROTECT A PERSON’S RIGHT TO WEAR A FACE-MASK
June 15, 2024
OPINION
Will Liberals learn to love the Second Amendment if it protects their right to wear facemasks?
That's just one of the questions raised by New York Gov. Kathy Hochul's push to criminalize wearing face masks in public.
Gov. Hochul and other Democrats are joining forces with Republicans to lean on the state legislature to turn back the civil rights clock and re-enact a ban on wearing facemasks in public—a ban that was first enacted to thwart an insurgency by tenant farmers in the Hudson Valley in 1845.
Back then, New York's politicians were in the pocket of wealthy landlords who kept the farmers in slave-like conditions. This time, public officials including Gov. Hochul are in Israel's pocket. They're taking aim at protesters demonstrating against the ZIonist state’s on-going mass-murder of Palestinians—criticism they falsely equate with anti-Semitism as a propaganda ploy to discourge others from joining the protests.
Criminalizing wearing face-masks is fraught with enormous legal challenges.
Many commentators have invoked the First Amendment, but the Second Amendment also protects the right—and it may afford a stronger legal foundation for a challenge to a mask ban than the First.
The main legal argument critics make is the First Amendment protects the right to anonymous political speech which translates into a right to wear a mask that conceals your identity at a protest. But a federal appeals court rejected this argument when it upheld New York's mask ban in the face of a challenge by the KKK in 2004.
The Court's decision was based on very narrow grounds that leave the door open to future challenges. That's because the foundation of the court's decision was its ruling that the facemasks worn by the KKK don't "convey a message independently of the robe and hood" KKK members also wear.
In contrast, many pro-Palestinian protesters use keffiyehs to cover their faces. A keffiyeh speaks for itself. It is by itself iconic of the Palestinian cause. As NBC news described it, the keffiyeh is "a symbol of Palestinian solidarity."
A ban aimed at pro-Palestinian protesters also implicates the First Amendment right to religious freedom and the Fourteenth Amendment right to be free from sex-based discrimination.
For example, many pro-Palestinian protesters are Muslim women who wear a specific type of face-covering called a hijab as an expression of their religious beliefs. Is Gov. Hochul and her allies prepared to effectively outlaw protests by Muslim women?
Say the proposed ban makes an exception for women wearing religious clothing, that means women can protest with their faces covered but men cannot? That's potentially sex discrimination, under existing U.S. Supreme Court decisions.
One problem with these arguments is that courts would have to carefully consider the facts specific to each case to determine whether a particular application of a facemask ban is legal or not. Bright line rules for police to follow would be almost-impossible to write. A mask law with exceptions would invite subjective, unequal enforcement. Police would use it as a pretext for a stop-and-frisk.
In contrast, the Second Amendment's potential to strike down any mask ban is a simple and straight-forward because it doesn't depend on a careful balancing of factors in individual cases. All it depends on is a court defining it's protection of the "right to keep and bear arms" to include facemasks.
While no court has ever found it does, Supreme Court decisions strongly suggest it could.
In District of Columbia v. Heller (2008), the Supreme Court held for the first time that the Second Amendment protects a person's right to possess firearms independent of service in a militia. Two years later, in McDonald v. City of Chicago (2010), the Court held the Second Amendment applies to all 50 states.
That's because, the Court explained, while the Second Amendment is explicitly directed at "arms," that's merely a specific expression of a broader, general underlying right to "self-defense."
"Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller we held that individual self-defense is 'the central component' of the Second Amendment right," the Court wrote. This general right to self-defense is a fundamental or basic human right, the Court added, “deeply rooted in this Nation’s history and tradition."
The Court explored the constitutional meaning of "arms" in Heller. It cited two 18th century dictionaries whose definition of "arms" it approved. Both included passive defensive devices designed to be worn on the person. One defined arms as including "armour of defence." The other said "arms" was “any thing that a man wears for his defence."
Six years after McDonald, the Court unanimously held in Caetano v. Massachusetts (2016) that the "arms" protected by the Second Amendment includes stun guns. Citing Heller, the Court wrote the Second Amendment "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
Face-masks are "instruments" designed to protect wearers from physical harm in the same way armor is designed to protect wearers from swords and bullets. Threats to Americans' safety don't just come from armed criminals, they include invisible but lethal viruses.
If the Second Amendment gives Americans the right to protect themselves with firearms, stun-guns and body armor, it also arms us with the right to protect ourselves from disease with face-masks.