It’s time for a ‘Second Amendment for Cars’

The time has come. In fact, it’s overdue: it’s time to add a “Second Amendment for Cars” to the U.S. Constitution.

In the U.S., there is a long history of moments when we have realized that innovations and technologies have created situations that the Constitution does not explicitly address. The questions currently arising about the future of fully human-driven vehicles and of individual vehicle ownership are a case in point, in the context of developing innovations in self-driving vehicle technology and the ridesharing business model.

Rights and reasonable regulations are not mutually exclusive. In the United States, state laws regulating firearms have existed from the earliest years of the Union, even though the Constitution explicitly acknowledges the right of citizens to keep and bear arms.

Yet somehow, when it comes to regulations affecting the ownership and operation of motor vehicles, we acquiesced early in the history of motoring to the principle that “driving is a privilege, not a right.”

The Second Amendment model illustrates that the privilege vs. right distinction was not necessary to justify state registration and licensing requirements for vehicle owners and drivers. Yet in state-issued driver licensing handbooks and driver education courses across the U.S., the phrase “driving is a privilege, not a right” is all-pervasive.

By failing to demand that regulations be situated in the context of a clearly articulated right to own vehicles and drive them in support of our unalienable right to move freely about the land, we may have inadvertently set the stage for the eventual universal revocation of those privileges.

But let’s not beat ourselves up too much about the past. The first state vehicle registration and driver testing and licensing laws began to appear early in the 20^th Century. New Jersey, for example, in 1913 became the first U.S. state to require that driver’s license applicants pass both a written exam and a driving exam, according to the New York Times.

Back then, concepts like self-driving cars and on-demand ride-hailing services that are now raising questions about the need for individual vehicle ownership must have been all but unimaginable. So a future need for constitutional protection of an individual’s right to own and drive vehicles was probably equally difficult to imagine.

In the pre-automobile United States, horse-drawn conveyances did not entail the same public safety risks that led to the regulation of automobiles, so the general rights to property, privacy, and freedom of movement were adequate to ensure protection of individual transportation rights.

At the historical moment of the automobile’s ascendancy, questioning an individual’s right to own a car would probably have seemed as preposterous as questioning the right to own a horse.

Determining exactly when authorities first began articulating the “driving is a privilege, not a right” maxim seems to be difficult. But there were Supreme Court cases early on that arguably shared the same underlying principle even if they did not spell it out in exactly the same language.

According to a November 2011 edition of the Law Talk column on the central Michigan newspaper website Mlive, the precedent for a state’s right to regulate drivers dates to 1916 U.S. Supreme Court decision in Frank J. Kane v. The State of New Jersey:

In an opinion written by populist Justice Louis Brandeis, the court held that the state’s power was “…properly exercised in imposing a license fee …”

The basis for government authority lies in the publicly-funded status of roadways and, also according to Mlive, “In 1999, the 9th Circuit of the U.S. Court of Appeals, in the case of Donald S. Miller v. the California Department of Motor Vehicles, ruled that there simply is no ‘fundamental right to drive’” guaranteed in the Constitution.

And that is the problem that those of us who value the freedom to drive where we want and when we want, using vehicles that we fully control and taking the routes of our choice, may soon face.

The Constitution guarantees no fundamental right to drive. That needs to change, and it needs to change now, before it’s too late.

If you don’t see how the freedom to own and drive vehicles is a fundamental element of your larger freedoms, consider the limitations faced by a person of limited means who owns no vehicle and must rely solely on pubic transportation and, theoretically, ridesharing services (if they are affordable).

A person in this situation is likely to have a very limited range of choices in where he or she can live and work.

If you are able to own your own vehicles, you can choose to live in a peaceful rural region in the middle of nowhere and “super commute” to a job in an urban employment center dozens of miles away.

Our hypothetical low-income urban dweller is likely to have no such choice.

But what if future limitations on vehicle ownership and accessibility and route options change the equation? What if a consensus of industry leaders and government policymakers, based on some combination of economic, safety, and environmental rationales, decides that it’s in everyone’s best interest to make regulatory decisions that discourage individual vehicle ownership and make living outside of infrastructure-intensive urban centers and close-in suburbs an increasingly difficult proposition?

This is just one example of how the convergence of current technological and social trends could place increasing restrictions on our practical ability to “travel freely about the land” and freely make basic choices about where we want to live, work, raise our families, and generally pursue our happiness.

The pervasiveness “driving is a privilege, not a right” principle is our clear evidence of the vulnerability of these freedoms, which demonstrably lack clear constitutional protection.

But we can change that, if we’re willing to get off our butts, make our voices heard, make our votes count, and do something about it. We can have a Second Amendment for Cars, while retaining the ability to regulate them based on safety considerations the same way we retain the ability to regulate guns.

A Second Amendment for Cars might read something like this:

The ability to travel freely about the land being a fundamental component of general individual freedom, the right of the people to own motor vehicles and drive them at the times of their choice and on the routes of their choice shall not be infringed.

Do you want Constitutional protection of this freedom? I sure do.

If you want a Second Amendment for Cars as well, what are you going to do about it?

Car enthusiasts are a minority, but we can make a difference.

In California, a SEMA-sponsored bill (AB390) to repeal a section of  a 2018 law (Legislation 1824) that has been used to levy steep fines on owners of tuned imports driven by youngsters who have watched too many of The Fast and the Furious movies, along with other vehicles with louder exhausts, is working its way through the legislative process.

Interestingly, the repeal legislation was introduced in early February, just a few weeks after the legislation’s impact on car enthusiasts began to be a topic of discussion in the automotive media at the national level.

For example, early this year the law was discussed on several influential automotive podcasts, including The Smoking Tire, Everyday Driver, and Overcrest. In fact, the Overcrest episode that dropped on January 11 featured an interview with California Assemblyman Jay Obernolte, who disclosed that happens to be a Mustang-building car guy who is personally involved in motorsports and pledged to personally look into the possibility that the law is overly restrictive on the automotive hobby.

And even if you overlook the role of one specific car-guy legislator, it’s hard to imagine a movement to repeal an exhaust-noise law gaining traction without the voice of car enthusiasts being centrally involved.

When we open our mouths, we can and do make a difference.

So starting a grass-roots movement in support of a Second Amendment for Cars is entirely plausible.