Glenn says that Eugene says that the old adage that “driving is a privilege, not a right” is wrong. This becomes largely a matter of semantics, however, as Eugene begins with this general observation:

There is no constitutional right to drive. (One can, I suppose, make arguments in support of such a constitutional right, but I doubt that they’ll work.) The state may, for instance, refuse to issue driver’s licenses to people who are under 25, or who are over 70, or who live in certain areas. In this respect, driving is like a wide range of other activity that is not forbidden by the state, that is in some measure regulated by the state, but that is not constitutionally protected. You do have a right to drive, but it’s a statutorily recognized and regulated right, not a constitutionally secured one.

[Emphasis in original.]

This strikes me as a distinction without a difference. People who chant that the tired DMV slogan that Driving Is A Privilege Not A Right (TM) are not arguing that states can revoke people’s licenses in violation of their own laws, but rather, that the state reserves the right to change the laws and restrict these privileges as it sees fit. To the extent that a “right” exists only at the sufferance of the state itself, it scarcely deserves to be called a “right” at all.

That said, I do believe that it is possible, and also proper, to recognize a “right” to drive even while accepting reasonable regulations on the same. It strikes me as unfathomable that the Founding Fathers Framers would have omitted a “right to drive” from the Bill of Rights if the automobile been invented prior to 1791, or even if such an invention appeared likely in the foreseeable future. After all, what individual right could be more fundamental to one’s liberty than his ability to go where he wants, when he wants? Of course the automobile did not exist then, so it got left off the list, but then again, maybe this is the sort of thing the kind of thing the Ninth Amendment was supposed to catch.

Even if I am wrong on the Ninth Amendment, I understand that courts have, on various occasions, held that the general right to travel is a fundamental “constitutional” right. Granted, driving and traveling are not one and the same, but they are closely related. Until the day comes when public transportation can quickly whisk everyone off from every imaginable Point A to every conceivable Point B, I would be hard pressed to think of any way a state could arbitrarily withhold a person’s “privilege” to drive without also seriously burdening his “right” to travel. So if we’re serious about a “right” to travel, talk of a “privilege” to drive seems inappropriate.

So where does that leave Eugene’s examples of state laws restricting driving by age or site of residence? Well, for starters, I’m not convinced that a state can constitutionally deny a person a driver license on account of where they live within the state. Such an arbitrary provision would be vulnerable to an equal protection challenge under the Fourteenth Amendment, if nothing else. The age restrictions, by contrast, are fine, but how are they different from the age restrictions states impose on citizens’ right (privilege?!) to vote? DUI laws, speed limits, and the like are not inconsistent with constitutional rights, either; after all, even the First Amendment isn’t absolute. So I think the better view is that driving is indeed a right, but one which, like many others, may be reasonably, but not arbitrarily, regulated by the state.

Eugene has responded to my observation that rights existing at the sufference of the state are illusory. I’ve responded to his reply here.