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Thomas Lucente: Driving is a right, not a privilege
Lima News ^ | August 18, 2013 | THOMAS J. LUCENTE Jr.

Posted on 08/18/2013 6:19:11 AM PDT by Deadeye Division

Once again, in a debate — this time on sobriety checkpoints — someone trotted out that old and ludicrous claim: “Driving is a privilege, not a right.”

Excuse me?

This mantra has been repeated by so many government bureaucrats for so long that many Americans actually believe it. I suspect the reason for this erroneous belief is two-fold.

First, decades of driving teachers telling students that driving is a privilege. Indeed, the Ohio Digest of Motor Vehicle Laws uses the term no less than 15 times.

The second reason is that the roads are owned by the government and we need a license to drive. The logic goes that if the state restricts our abilities to engage in an activity, then that activity must be a privilege rather than a right.

That logic, however, fails upon scrutiny. The state (often wrongly) licenses and regulates all kinds of activities that are fundamental rights.

Most would agree that voting is a fundamental right. However, the state says you can't vote until you are 18. The state also dictates where and when you can vote. And the state dictates the rules on how you appear on the ballot. Many states also take away that voting right if you commit certain crimes.

Does that then transform voting into a privilege?

Of course not.

Another pertinent example would be a license to carry a concealed handgun. The right to keep and bear arms is not only a fundamental right, it is one that is actually enumerated in our Constitution. Yet, every state in the union regulates the right. In most states you can't carry a concealed handgun without a license. And you can lose that fundamental right if you commit certain crimes.

Does that then transform the right to bear arms into a privilege?

Again, the answer is no.

It also fails for a more basic reason. Government does not own the roads, we do. Government took the money from us to build the roads. A good analogy is copyright law. When a government employee takes a photograph, there is no copyright. We all own the photograph and we are all free to use it as we see fit.

This debate may seem trivial to some, but it is not. If the government has the power to claim a right is a privilege, then no right is safe.

The thing to remember here is that rights are not political grants from government. Rights exist by the nature of our being regardless of how the government feels about it. Or, as the Founders put it, they are inalienable.

Privileges, on the other hand, are interests created by the grace of the state and are dependent for their existence on the state's sufferance. They may be denied or withdrawn without the substantive and procedural due process protections that normally attach to the denial or the taking of rights.

That alone destroys the myth from a legal perspective that driving is a privilege. The state cannot arbitrarily deny or withdraw a license. There must be due process. If it were merely a privilege, then the clerk behind the desk at the Bureau of Motor Vehicles could simply refuse to issue a license for any reason or for no reason.

That is why it is called a license and not a permit.

The fact is we have an inalienable right to travel. The motor vehicle is the normal mode of transportation today. Ergo, we have the inalienable right to travel and engage in commerce using an automobile upon the roads.

Perhaps the Supreme Court of Illinois put it best in 1929: "The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived."

The Supreme Court of Virginia echoed that sentiment a year later: "The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common law right which he has under the right to life, liberty, and the pursuit of happiness."

.

Thomas J. Lucente Jr. is licensed to practice law in the state of Ohio. He is a veteran of the Iraq war, has a bachelor’s degree in history and a law degree from the University of Toledo. He has been published in newspapers, magazines and websites across the country. He can be heard on “Talk with Ron Williams” on WCIT-AM at 3 p.m. Thursdays (listen at http://940wcit.com). Readers may write to him at The Lima News, 3515 Elida Road, Lima, Ohio 45807-1538, or e-mail him at tlucente@limanews.com. His telephone number is 800-686-9924, ext. 2095, or 419-993-2095. Visit his blog at http://www.lucente.org. Follow him on Twitter at http://tho.lu/twitter, Google Plus at http://tho.lu/google, and Facebook at http://tho.lu/facebook.


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS:

1 posted on 08/18/2013 6:19:11 AM PDT by Deadeye Division
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To: Deadeye Division

I’ts right there in the first ten amendments. But you have to dig for it.


2 posted on 08/18/2013 6:25:18 AM PDT by Mr Ramsbotham (I'll retire to Bedlam.)
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To: Deadeye Division

I’m not sure about this. To travel where one wants to go is clearly a right. To do so on ones own two legs should not be a matter of governmental assent.

The government may have a role to play in establishing rules of the road and minimum standards of competency when people start piloting a ton or more of sharp edged steel at 70 MPH a few feet from me.


3 posted on 08/18/2013 6:28:42 AM PDT by muir_redwoods (Don't fire until you see the blue of their helmets)
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To: muir_redwoods
The government may have a role to play in establishing rules of the road and minimum standards of competency when people start piloting a ton or more of sharp edged steel at 70 MPH a few feet from me.

Lets ask some of our over 12 million illegal aliens who are traveling our roads at 70 MPH freely without licenses, tags, insurance, safety inspections nor any understanding of our traffic signs or laws and with a minimum down payment with no payments after that.

4 posted on 08/18/2013 6:40:14 AM PDT by fella ("As it was before Noah, so shall it be again,")
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Comment #5 Removed by Moderator

To: muir_redwoods

You hit the nail. This I***T wants that habitual drunk to have the right to pilot his ton and a half car all over the highway I’m also on. Like hell.
He insists that drunk, weaving across two or three lanes at 70mph has the RIGHT to be on the same road as HIS wife and maybe children.
The government may truly be a pain in the butt, but the safety of its citizens is a paramount obligation. The act of not allowing a habitual offender from the act of driving is one of the ways the citizenry is kept a little safer.
The licenses I have, both driving AND “concealed carry” are evidence that I have been backgrounded, tested, and taught PROPERLY and SAFELY the use of (fill in blank).
A citizens “RIGHT” to do anything cannot put into danger another citizens “RIGHT” to remain alive.


6 posted on 08/18/2013 6:43:09 AM PDT by CaptainAmiigaf (NY TIMES: We print the news as it fits our views.)
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To: muir_redwoods
The government may have a role to play in establishing rules of the road and minimum standards of competency when people start piloting a ton or more of sharp edged steel at 70 MPH a few feet from me.

As the article states, most rights are controlled by the government. Driving is a right. Cars replaced horses and carriages, use of which was a right that fact alone makes driving a right. The man writing this article is 100% correct. I can tell by your comment in you that you have a lot of liberal in your brain.

7 posted on 08/18/2013 6:43:38 AM PDT by calex59
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To: Deadeye Division

I suppose the right to drive could be hidden in the commerce clause, everything else is.


8 posted on 08/18/2013 6:43:49 AM PDT by Charles Martel (Endeavor to persevere...)
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To: muir_redwoods

It really gets murky when we throw in Law Enforcement and their demands of you showing identification.


9 posted on 08/18/2013 6:45:33 AM PDT by corlorde (forWARD of the state)
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Comment #10 Removed by Moderator

To: Mr Ramsbotham
The Constitution gives certain powers to the federal government, and limits the government from acting outside of what is written. It doesn't give rights to the people.

You have it upside down.

If the Constitution doesn't mention it, the government has no authorization to act on it. The rights of the people, however, are not listed and remain almost unlimited.

/johnny

11 posted on 08/18/2013 6:51:22 AM PDT by JRandomFreeper (Gone Galt)
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To: corlorde
The supreme court has ruled on demand to show id. Government has a very limited power to demand id. Most people don't know that.

/johnny

12 posted on 08/18/2013 6:53:03 AM PDT by JRandomFreeper (Gone Galt)
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To: muir_redwoods

You must distinguish between private and commercial transportation. People using the road to make money ARE operating within a PRIVILEGED capacity.


13 posted on 08/18/2013 6:58:57 AM PDT by HMS Surprise (Chris Christie can STILL go straight to hell)
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To: muir_redwoods

If you have a right to freely associate with whom you will, then you have to be able to get to them to do so.

You can’t limit this to walking. That would limit who you could freely congregate with. Traveling freely by vehicle is a right. It is not a privilege.

Can that right be restricted? Of course it can, and it should be for cause. Children shouldn’t be able to drive. They don’t have the judgment. Should elderly people drive who have become incompetent to do so? No.

There are other examples to be sure, but we should NEVER buy into the idea that the state should be able to arbitrarily tell normal folks who are abiding by the law, that this is a some sort of privilege. It is a right!

Failing any clear threat to others on the highway, every competent (and it is reasoned they be required to prove so) citizen of age should be able to drive. It is their right to do so.

If it is a privilege, the state could just arbitrarily state that any individual or member of a group it wanted to block from driving, could not drive, whether they had done anything wrong or not.

It can’t. Therefore, driving is a right.


14 posted on 08/18/2013 6:58:58 AM PDT by DoughtyOne (This post coming to you today, from behind the Camelskin Curtain. Not the Iron or Bamboo Curtain...)
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To: muir_redwoods

You must distinguish between private and commercial transportation. People using the road to make money ARE operating within a PRIVILEGED capacity.


15 posted on 08/18/2013 6:58:58 AM PDT by HMS Surprise (Chris Christie can STILL go straight to hell)
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To: Deadeye Division
Your right to travel is guaranteed by the Constitution.

The interpretation and definition in title 49 is clearly laid out United States code.

The truth of the matter is, by definition you do not have to get a license you do not have to register and put a tag on your car what you do have to do is register the car and get a certificate of title.

Now lawyers, police, judges will not tell you the definition you have to find it yourself.

The only people that have to get a license and register their vehicle or for a commercial drivers license for operating a motor vehicle.

Take the time to read the law and you will find out that all of us have been lied to.

16 posted on 08/18/2013 7:02:22 AM PDT by SERE_DOC ( “The beauty of the Second Amendment is that it will not be needed until they try to take it.” TJ.)
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To: HMS Surprise

Okay, so you drive down the highway in your vehicle, and you have a right to do so.

Toss some flats of strawberries in the back seat to sell at the swap meet, and all of a sudden, you’re operating under a privilege? Say what?

You drive a big rig and you’re only doing so by the grace of the state?

Oh hell no! You may have to comply with laws, but then we all do. That still doesn’t make it a privilege. People have every right to utilize our highways for commerce. They don’t need permission to do so, any more than you and I do to get to grandma’s.


17 posted on 08/18/2013 7:05:52 AM PDT by DoughtyOne (This post coming to you today, from behind the Camelskin Curtain. Not the Iron or Bamboo Curtain...)
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To: CaptainAmiigaf

“I***T”

Do you mean “idiot”? Hardly a word to self censure.


18 posted on 08/18/2013 7:06:56 AM PDT by Ray76 (Common sense immigration reform: Enforce Existing Law)
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To: muir_redwoods; The Wizard; CaptainAmiigaf

Maybe you are missing the point.
From the article:
-
“Rights are not political grants from government...
as the Founders put it, they are inalienable.”

“Privileges are interests created by the state...
and may be denied or withdrawn without due process.”

“(It is a) myth from a legal perspective that driving is a privilege.
The state cannot arbitrarily deny or withdraw a license.
There must be due process.”

“The fact is we have an inalienable right to travel.
This debate may seem trivial to some, but it is not.
If the government has the power to claim that a right is a privilege,
then no right is safe.”


19 posted on 08/18/2013 7:08:36 AM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: DoughtyOne

“the state could just arbitrarily state that any individual or member of a group it wanted to block from driving, could not drive”

And they do. Sometimes for things like failing to make child support payments.

Not only is it an abuse that should not be allowed, it’s impractical: it very likely takes away someone’s job - good luck getting your child support payments now.

DL is a tax and a lever of control for all kinds of things.


20 posted on 08/18/2013 7:12:24 AM PDT by Ray76 (Common sense immigration reform: Enforce Existing Law)
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To: Deadeye Division

BFL


21 posted on 08/18/2013 7:20:16 AM PDT by Dust in the Wind (U S Troops Rock)
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To: Deadeye Division

He does get one part entirely wrong: licensing of the 2nd A effectively DOES makes it a privilege.

He’s exactly correct here. It became a privilege with the advent of 30-40’s cars? IIRC, they originally were little more than ID cards, no testing involved. Even today the license does NOTHING to showcase the skills needed when on the road (15min ‘test’ in the DMV parking lot...WHOOPEE!)

But, as usual, give gov’t one inch and it soon creates the leviathan itself; with the Citizens losing sight of what was once lost....the Right of free travel upon roads bought/paid by the public.


22 posted on 08/18/2013 7:30:46 AM PDT by i_robot73 (Give me one example and I will show where gov't is the root of all problems.)
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To: Deadeye Division

I’m not sure what this guy is arguing about. Sure, in the broadest sense of the term related to the constitution, everybody has a “right” to travel/drive. But all “rights” have restrictions. If he is saying there should be no restrictions established by the state however the quality of the driver, then he is incorrect. Just as you are not allowed to shout “fire” in a crowded area when there is no fire, you are not automatically allowed to drive if you’ve proven to be a menace.


23 posted on 08/18/2013 7:44:10 AM PDT by driftless2
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To: Deadeye Division

Can you ride a horse after getting a DUI on a horse?

Ask the new castratti.


24 posted on 08/18/2013 7:46:30 AM PDT by eyedigress ((zOld storm chaser from the west)/ ?s)
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To: Repeal The 17th

We have the right to free speech but when we choose to use the public airways and broadcast that speech the FCC gets involved. A case could be made for no such restrictions but then it would be easy to deny your speech by using the same frequency and jamming your message. Persistent drunks do not have the right to endanger the rest if us on the roads. If you accept that premise the rest of the government role gets at least a basis for debate.


25 posted on 08/18/2013 7:49:39 AM PDT by muir_redwoods (Don't fire until you see the blue of their helmets)
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To: Ray76
...the state could just arbitrarily state that any individual or member of a group it wanted to block from driving, could not drive...

And they do. Sometimes for things like failing to make child support payments.

I agree.  Yes, they do.

Not only is it an abuse that should not be allowed, it’s impractical: it very likely takes away someone’s job - good luck getting your child support payments now.

Exactly.  It is an unacceptable abuse.  It is also counter-productive.  How moronic can it get, preventing someone from making an income to make them come up with the funds they owe.

DL is a tax and a lever of control for all kinds of things.


I agree.  This is a real Catch 22 for me.  In some ways I think we need licensure.  In other ways, it causes problems.


26 posted on 08/18/2013 7:50:35 AM PDT by DoughtyOne (This post coming to you today, from behind the Camelskin Curtain. Not the Iron or Bamboo Curtain...)
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To: Deadeye Division

I fall on the rights side of the debate. More from praccticalities sake than anything. I saw something very interesting last year that was instructive: a pickup driver in MO who had a tag indicating a refusal to register the vehicle. Driving along the freeway just like the rest of us. It reminded me of us. Sure. The police could stop him, but to what end? He was driving under the speed limit, scrupulously observing traffic laws, and generally going about his business.

What a lot of laws fundamentally boil down to is..whaddaya gonna do to enforce them? So let’s say the police pull this guy over. He refuses to provide ID, and indeed refuses to even speak to police. So they arrest him. He goes to jail. And then promptly goes on hunger strike. Thus raising the ante. In most jurisdictions, he’s going to go free. The county isn’t going to hold someone and force feed them over a low level misdameanor.


27 posted on 08/18/2013 8:10:52 AM PDT by RKBA Democrat (Power disintegrates when people withdraw their obedience and support)
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To: muir_redwoods

The article simply points out that driving is a right, not a privilege.

Nowhere in the article does the author say that this right can not be restricted or regulated.

In fact, he clearly states that it can be.

But, as the author points out,
placing restrictions on a right does not change that right into a privilege.

Placing restrictions or regulations on the clearly enumerated rights of free speech,
a free press, freedom of religion, or the right to keep and bear arms,
does not change any of those things from a right into a privilege.

Any thing else that you read into the article comes from your imagination.


28 posted on 08/18/2013 8:17:32 AM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: DoughtyOne
If it is a privilege, the state could just arbitrarily state that any individual or member of a group it wanted to block from driving, could not drive, whether they had done anything wrong or not.

The state has no vested interest in denying the privilege to those who had not warranted such prohibition. To single out a group of law-abiding, tax-paying citizens and arbitrarily deny them the ability to engage in commerce which generates tax revenue is a benefit to the state in what way?

A person who gets drunk and talks crazy does not lose his right to speak his mind because he is not a threat to public safety. Put that person behind the wheel and he becomes exactly that. That is why driving is a privilege to be revoked when it is used in an irresponsible manner.

29 posted on 08/18/2013 8:19:58 AM PDT by Tonytitan
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To: Repeal The 17th

Sadly, when I actually DO miss the point, I just have to admit it. Don’t like to, but admit it.
In reality, I’ve heard people who have lost their driving license proclaim that they have a “RIGHT” to drive, and they do, no license notwithstanding.
My erroneous reaction was caused by having read way too often of a driver being charged with his 5th or 7th drunk driving offense. Still walking around and on the road.


30 posted on 08/18/2013 8:45:25 AM PDT by CaptainAmiigaf (NY TIMES: We print the news as it fits our views.)
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To: JRandomFreeper
If the Constitution doesn't mention it, the government has no authorization to act on it. The rights of the people, however, are not listed and remain almost unlimited.

I think the states come into the equation at some point.

31 posted on 08/18/2013 8:55:30 AM PDT by Mr Ramsbotham (I'll retire to Bedlam.)
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To: Deadeye Division

I have said this myself. Driving is a right. Unless someone proves that they are not capable of driving responsibly; it is a right.

Government exists only as a privilege that we the citizens grant to them.


32 posted on 08/18/2013 9:14:12 AM PDT by HereInTheHeartland (Just wanted to say I hope you great NSA folks are enjoying my posts here.)
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To: Tonytitan
That is why driving is a privilege to be revoked when it is used in an irresponsible manner.

I agree with much of what you have written here. Here you reveal your thinking is upside down.

It is a right that can be abridged for cause.

It is never a privilege.

Think of all the things you do, that the state or federal government enters into it.

Is working a privilege?
Is owning your home a privilege?
Is owning a car a privilege?

If driving is a privilege, then just about your entire existence is a privilege, graced to you by the state.

You don't believe that. Neither do I.

33 posted on 08/18/2013 9:54:40 AM PDT by DoughtyOne (This post coming to you today, from behind the Camelskin Curtain. Not the Iron or Bamboo Curtain...)
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To: Deadeye Division

All this talk about rights reminds me of the Priest’s confronting a topless woman in the church. She said, “I have a divine right”. He said “you have a divine left too, but you will have to cover them both”.

It is a right to drive. If you drive my car, I am giving you the privilege to do so.


34 posted on 08/18/2013 11:53:04 AM PDT by BatGuano (You don't think I'd go into combat with loose change in my pocket, do ya?)
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To: Deadeye Division

All this talk about rights reminds me of the Priest’s confronting a topless woman in the church. She said, “I have a divine right”. He said “you have a divine left too, but you will have to cover them both”.

It is a right to drive. If you drive my car, I am giving you the privilege to do so.


35 posted on 08/18/2013 11:53:20 AM PDT by BatGuano (You don't think I'd go into combat with loose change in my pocket, do ya?)
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sfl


36 posted on 08/18/2013 1:13:01 PM PDT by phockthis (http://www.supremelaw.org/fedzone11/index.htm ...)
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To: HMS Surprise
You must distinguish between private and commercial transportation. People using the road to make money ARE operating within a PRIVILEGED capacity.

Bingo.

Commercial transportation is "driving."

Private transportation is "travelling."

You don't need a "travelling" license.

37 posted on 08/18/2013 2:37:45 PM PDT by Talisker (One who commands, must obey.)
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To: Talisker

Wow, someone else gets it.


38 posted on 09/27/2013 1:15:40 PM PDT by HMS Surprise (Chris Christie can STILL go straight to hell)
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