No, You Don’t Have a Right to Not Wear a Mask
By: Sean Myers
Tags: Covid 19, Pandemic, Politics, Coronavirus, America

Image by Sumanley xulx from Pixabay

Coronavirus cases are skyrocketing in a third wave across the U.S., so you know what that means: More lockdowns.

And when lockdowns, stay-at-home orders, and mask mandates are issued, you know what that means: Contrarians will insist that they don’t have to wear a mask.

Known as “covidiots,” some of them claim that the government can’t tell them to wear a mask. That idea is debunked, here:

Others, however, make an argument that is similar, but different in important ways: “I have a right to not wear a mask.”

Here is a tactical guide for responding to this absurd claim when you encounter them recklessly putting other people at risk of infection in stores.

The Preliminary Step: Shift the Burden of Proof

The most important first step to take is to shift the burden of proof. Covidiots say that they have a right to not wear a mask.

Ask: Which right?

This stops a lot of covidiots dead in their tracks. They’ll stammer or stumble into a tautology like, “My right to not wear a mask.” You may have to coax them, a bit.

Ask: Where does that right come from? Do you get it from a statute? Do you get it from the Constitution?

Asking in this particular way — do you get it from a statute or the Constitution? — is designed to trigger them into shouting what most covidiots¹ think is akin to checkmate:

“My constitutional right!”

Of course, some covidiots hope that someone stands up to their mask-less spittle-spewer precisely so they could bellow those very words. That hope forms the second they walk through the door, nay, from the moment they left the house and held aloft the frayed strings of the lone surgical mask on the doorknob, asking it, “Do I care about the well-being of my fellow man, today?”

But hark! What is? That sound?

’Tis the author, a legal writer with a law degree, chuckling softly and popping his knuckles.

Ask: Which constitutional right?

There’s No First Amendment Right to Go Mask-less

If the covidiot says that it’s their First Amendment right to go without a mask, in violation of mask mandates, there are three outcomes. None of them go well for covidiots.

First, they say it violates their freedom of speech. Lawyers have actually advanced this argument in court. They lost, of course, but they did try. Obviously, masks don’t prevent free speech — the covidiot just said something, so it doesn’t stop speech or idiocy from happening — and they also don’t penalize speech, after the fact. That should end the discussion but, if the covidiot doesn’t think that it does, you can say that there’s a significant government purpose for the pandemic response, mask mandates and lockdowns are narrowly tailored to that purpose, other avenues for speech are left open, any speech restrictions are content neutral, and this a “time, place, or manner” restriction, much like a noise ordinance.

Say: Clark v. Community for Creative Non-Violence.

If they point out that they’re talking about wearing a mask and demand to know why you’re talking about noise ordinances, tell them they they’re the ones who were stupid enough to make this all about free speech.

Second, they can say that it violates their religious rights. You can just laugh at this one.

Third, they might claim that it violates their right to assemble.

Say: You can assemble wherever you want… With a mask on.

Regardless of which avenue the covidiot has chosen, end by calling the manager.

They Don’t Understand the Fifth Amendment

Once in a while, a covidiot will stumble on the Fifth Amendment, which forbids:

Deprivation of life, liberty, or property without due process of law

Taking private property for public use, without just compensation

Ask: Would a mask deprive you of life, liberty, or property?

Their only response is “liberty.” They will say it in all caps.

Ask: And you can’t go to court to have your case heard?

They can, of course. They can file a lawsuit and claim that the government is “TYRANNICAL” and their rights have been violated. They just don’t want to.

Say: You have due process available. Use it. In the meantime, put on a mask.

If their idea of the Fifth Amendment was the Takings Clause, rather than the Due Process Clause, it’s much easier.

Ask: What piece of property has been taken from you and is being used for a public purpose?

While the covidiot flounders, call over the manager.

“This Mask is Violating My Eighth Amendment Rights!”

Lord help him. The piece of cloth on his face is a cruel and unusual punishment.

Say: Thoughts and prayers!

Then call the manager.

“I Have Rights Under the Ninth and Tenth Amend –”

Say: No you don’t.

Interrupt them and end on a full stop. Cut the covidiot right off. They will bluster.

Say: There are no rights guaranteed by the Ninth or the Tenth Amendments.

The Ninth and Tenth Amendments are like a key to interpreting the rest of the Constitution. If the Constitution gives, or enumerates, certain powers to the government, then the exercise of those powers by the government do not violate constitutional rights. Hence, why the federal government can tax people without violating the Takings Clause.

Not only does these amendments not give people any substantive rights, at all, let alone one that specifically allows someone to walk mask-less in a pandemic: They explicitly give state governments their “police power,” which lets them govern for the public health, safety, and welfare.

Say: So, you see, you thought that the Ninth and Tenth Amendments gave you the right to go without a mask, but they actually give the governor the power to make you wear one, and the manager the right to kick you out.

“But My Equal Protection Rights!”

You don’t have to say anything. Just point to your own mask. Point to everyone else’s mask.

Oftentimes, though, the covidiot won’t get it.

Say: You’re not being treated unequally.

In Conclusion

No, you do not have a right — constitutional or otherwise — to be in public without a mask on. As cases spike, a vaccine has not yet arrived, and our government has shrugged, it has fallen on our shoulders to keep Americans safe.

Please wear a mask and please keep this article open on your phone so you can confront the mask-less and make the scene that saves us.

Endnotes

[1]: Tricky blighters might respond with, “a federal statute,” because that’s actually a more reasonable retort. That’s okay, though. If they haven’t said which statute gives them the right to go mask-less in public, ask which one it is. If they say anything other than the Americans with Disabilities Act, or the ADA, you can laugh at them because they’re wrong. They’re likely to say the ADA, though, because of that card that made the rounds. If that’s what they say, you ask which disability they’re claiming gives them the right to violate your state’s mask mandate. Even if they do raise a legitimate respiratory health condition that makes mask-wearing difficult for them, the appropriate response is, “Let’s talk to the proprietor of the store to get you a reasonable accommodation.” Just because someone has a breathing issue doesn’t mean they can never be told to put on a mask in a pandemic. That would be stupid. It just means that stores have to make reasonable accommodations available to them, like curbside shopping or home delivery. If you ask what disability they’re claiming and they scream, “HIPPA” back at you, ignore it and proceed directly to the reasonable accommodation part.