SWCPHX

And a car dealership will happily sell you a car. That transaction alone, however, does not mean that you can just drive it around without further registering it or paying license fees, etc. Just because a business is willing or able to complete a transaction with you does not mean that you have further rights.

InkUnderNails

I never said they could not pass a law and institute a means of enforcement. I said it was not within their enumerated powers to do so.

As for firearm ownership, and ignoring the confusion of the incorporation clause for now, the states are within their rights to regulate firearms. In general, most states, some with more severity than others, have adopted doctrines that say if one is dangerous to society as defined by law and shown by evidence in some sort of judicial or legal review, the that right to firearms possession and ownership can be regulated. The parallel here is that if I have a proven record of being danger to others by flying, then the government can restrict my right to travel.

We used to have a system where everyone was deemed fit to travel by air and the airlines or the government had to find cause to prevent that travel. We now have a system where no one has the inherent right to travel by air until we can prove that we are not a danger to the aircraft or those traveling. It appears to be a subtle difference, but there is a wide gulf between the two.

Furthermore, it is quite ridiculous to propose that because we have a right to something, that someone else is required to pay for us to make use of that right.

WillCAD

This appears to be the heart of your argument, and it's not only wrong, it's one of the most dangerous attitudes anyone can have in a free society.

Apply that logic to other rights. Let's say, freedom of speech.

Suppose the government said, "Sure, you have the right to freedom of speech, but the privilege of speaking by any specific method is is subject to rules and regulations that the Government clears has the power to enact and enforce."

So, you could say whatever you want, but you need government approval to say it. Speaking Security Authority Officers would have to clear anything you say in a public forum; they'd have to check and approve anything you write on the internet; they'd have to filter anything you publish in a newspaper or magazine; and they'd have the power to examine any written documents you possess to search for "regulated" speech whenever you attempt to exercise your freedom of speech.

Oh, but they're not denying your freedom of speech, because you can still say whatever you want in the privacy of your own home.

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Suppose the government said, "Sure, you have the right to freedom of assembly, but the privilege of assembling by any specific method is is subject to rules and regulations that the Government clears has the power to enact and enforce."

So, you could assemble whenever you want, but you need government approval to do it. Any time you gather in groups greater than XX amount (such as to go bowling, family reunions, weddings, funerals, going to work, watching fireworks, attending your kids' sporting events, going to work, or your kids going to school), Assembly Security Administration Officers would have the authority to show up and conduct invasive searches of anyone in attendance. Imagine if ASAO's showed up at your kids' school to pat them down before they enter; or if they showed up at funerals to pat everyone down; or if they showed up at your workplace and you had to queue up to empty your pockets and go through an AIT scanner or be patted down to get into your office.

Oh, but they're not denying your freedom of assembly, because you can still assemble whenever and wherever you want, they're just putting reasonable restrictions on it to keep us all "safe".

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Putting extensive restrictions on a freedom and creating an undue burden on the exercise of that freedom is called "infringing". And it's prohibited in the Bill of Rights.

Boggie Dog

Does a court have to rule on this or any other question to codify a right?

SWCPHX

Um, that's the society that we live in. You can't yell "Fire" in a crowded theatre, you can't publish slanderous or libelous statements, you can't plagiarize another's work, and you can't hold a parade down Main St. without a permit. What's the issue here? The Government has the unquestionable authority to place restrictions and limits on certain rights.

In your opinion, the TSA is an unreasonable limitation on your privilege to travel by air. I'm not necessarily disagreeing with you, but it's a completely mistaken belief that the Government can't and doesn't have the ability to place restrictions on liberties.

SWCPHX

Respectfully, it doesn't really matter if it's not within their enumerated powers to do so. The courts have said that they can and that's really all that matters.

InkUnderNails

In one statement you have managed to underscore the problem perfectly. Thank you for the clarity.

You believe that the enumerated powers no longer matter because the rule of men have circumvented them. I believe that the enumerated powers are all that matters, and the opinions of men, the rule of men not of law, is the problem and that ignoring enumerated powers is the problem and not just in this area but in many others.

Sadly, our disagreement irreconcilable as it is a political argument rather than one of travel security. It is an OMNI-type discussion, and no additional comment will be forthcoming.

You have defined your position well enough. I now know where you stand.

GaryD

The courts have ruled only that such acts are within their enumerated powers. It is still up to us, indeed it is our duty as citizens, to decide whether the courts erred, in any given instance.

It has happened in the past, and some current court rulings will also undoubtedly be shown to have been in error, some day.

Even so, even the imperfect courts have apparently not ruled that individuals do not have a "right to travel by aircraft."

Courts are bound by the U.S. Constitution. We need not wait for the courts to rule before we know what the Constitution provides. Which clause in the Constitution gives the Congress the power you suggest it has?

RedSnapper

Two questions:

1. What do you think congress meant when it codified into law the right to freely move through the navigable airspace, if it did not mean the right to fly? Possibly they meant the right for a person to float tethered to a balloon.

2. What is the difference, in legal terms, between a "privilege" and a "right"? When asked for this difference, most people respond by capitalizing the two words and re-iterating the statement...but here I'm looking for a workable legal definition. I've already cited what SCOTUS had to say on the matter in the context of procedural due process: that there is no meaningful distinction. How do you distinguish between the two words, and what is your source?

SWCPHX

Commerce Clause, article 1, section 8, clause 3.

SWCPHX

That airspace was not any different than the public roads and land based routes. That as long as you had standing to be in navigable airspace you could use it. You can fly anywhere you want any route you want as long as it's navigable and not closed.

This has been asked and answered numerous times with several examples. You have a right to travel via the interstate highway system, it is, however, a privilege to have a driver's license to operate a motor vehicle. You have the right to vote, early voting or absentee voting is a privilege in some jurisdictions. A woman has the right to an abortion, it is a privilege that a facility may be nearby that can perform one. You have the right to "bear arms" it's a privilege to be able to carry concealed, open, or whatever. It's a privilege to own magazines above a certain capacity. I'm not sure why this is a difficult distinction.

RichardKenner

False. The current state of the law is indeed that a court has ruled there is no such right.

RichardKenner

That argument can't succeed. The Commerce Clause specifically allows the government to regulate interstate commerce. That's been abused a lot recently, but there's no question that air travel is interstate commerce.

RichardKenner

But that essentially is the law! You need a permit to have an assembly in almost all jurisdictions.

RichardKenner

Yes, because the way rights get codified is the courts. It's the sole perview of the courts to interpret and define the boundaries of "rights". Congress can pass laws, but it's up to the courts to determine whether or not they infringe on rights.