The Bill of Rights does not exist to codify individual rights. In fact, the 10th Amendment exists precisely to ensure that the Bill of Rights is never interpreted to be an exhaustive list.
No, the Bill of Rights was ratified to put the government on notice that it cannot violate citizens' pre-existing natural rights.
When the Founders ratified the 1st Amendment, they included a lot of different rights. They banned the government from violating Americans' right to practice their religion, exercise their free speech, petition the government for a redress of grievances, and a peaceably assemble.
That last right doesn't get a lot of coverage in typical 1st Amendment discussions, but it is vitally important. If the people want to assemble, and agree to do so peaceably, the government cannot prevent it. Courts over the years have allowed governments to institute permitting requirements for large public gatherings, but they cannot be banned outright if they are going to be peaceful.
Earlier this week, the Sanders and Biden campaigns both cancelled their rallies in Ohio. They claimed that it was in response to the coronavirus and done in the abundance of caution.
Since then, though, we have learned a bit more about how those decisions were made. Both campaigns cancelled their rallies at the insistence of state and local officials. They were told that they were not allowed to hold these rallies.
Gov. Mike DeWine (shown above) has since come out and announced that he plans to institute a "ban on large events."
“Every expert has told us that there is a risk in any kind of mass gathering - the closer you are to other people, the bigger the risk. You must ask yourself if going to a large gathering is necessary,” DeWine explained.
But this isn't going to be left up to the American people 'asking themselves' whether it is necessary. The Governor has said that he will be prohibiting public gatherings by executive fiat.
Based on what the medical experts say, this is probably a good policy proposal from a public health perspective. But we do not live in an ends-justify-the-means society. We do not live in a authoritarian country like China, where the government can lock down entire cities and arrest people for simply stepping foot outside.
We live in a country of laws and rights.
As of yesterday, there were four confirmed cases of coronavirus in the state of Ohio. Four.
Only one of those cases is suspected to be the result of community spread, meaning that the other three contracted the virus elsewhere.
The CDC is now estimating that the novel coronavirus is around 10x deadlier than the seasonal influenza virus. That puts it somewhere between Pertussis and Diphtheria in terms of mortality rate. Obviously, both of those diseases are included in the CDC's vaccination schedule, so there is a lesser chance of them reaching pandemic levels. Still, the elderly and individuals with pre-existing health conditions and immuno-deficiencies are just as, if not more vulnerable to these diseases.
There were over 800 cases of Pertussis confirmed in Ohio last year. There was no executive order banning public gatherings. No panic in the streets.
Again, widespread vaccinations protect the average person from contracting Pertussis. But considering how dangerous the disease is in children, and given the fact that no child has yet died from the coronavirus, it is an interesting comparison.
The ultimate question is if the government has the power to ban peaceful public gatherings in the interest of public health -- which is certainly debatable -- who gets to decide when that is necessary?
Who gets to decide when the 1st Amendment's right to peaceful public assembly no longer applies?
Does a state have the right to ban all public gatherings because four people in a state of over 11.6 million test positive for an illness?
Would the governor have the right to ban gatherings if there were only three positive tests? Two? One? What if the government wanted to suspend the 1st Amendment pre-emptively without any evidence of a localized outbreak?
No one wants the coronavirus to spread and if you are particularly at risk for complications if you contract it, then it is probably a good idea to avoid public gatherings. But that doesn't mean that we should just accept governmental orders like this suspending our Constitutional rights.
There is no "coronavirus exception" in the 1st Amendment; no footnote providing a public health caveat...