Protests are emotional expressions, not intellectual ones. 

Bearing that in mind, I understand why people were on the street across the country. I understand why protestors took to the streets in Michigan and Ohio, and why people were on the street in Carson City yesterday, too. They’re afraid. They see their governments (local, state, and federal) exercising new powers in their lives. Many of those powers are exercised arbitrarily, as powers often are. 

For example, the difference between gathering in groups of “ten or more,” which was prohibited by Emergency Directive 013, and “more than ten” is medically minimal but is religiously significant — “more than ten” would allow groups of ten to gather, which would allow a Jewish minyan to meet. Liquor stores are “nonessential” businesses, but stadium construction remains “essential.” In other states, grocery store aisles are selectively blocked off depending on how “essential” (who decides what’s “essential”?) the products on the shelves are. 

It’s maddening.

Worse yet, the information our governments (and, for that matter, the rest of us) are basing their decisions on is frustratingly incomplete. On the one hand, nobody really knows what the actual death rate of COVID-19 is. It could be 3-5 percent; it could be significantly less. Since we aren’t doing random testing of the population (which, incidentally, would be another infringement against our liberties if we actually went through with it), all we know is that 3-5 percent of the people sick enough to go to a hospital with symptoms of COVID-19 infection die. In the rare moments when we do get to randomly test a population, we sometimes find hundreds of nonsymptomatic people without so much as a sniffle. Why stop public gatherings and shut down the economy over something that’s less inconvenient than airborne pollen?

On the other hand, COVID-19 has killed more Americans than the Korean War and, in the past month, has killed as many Americans as car accidents kill in a year. Sweden, which has been far less aggressive about controlling COVID-19 than its neighbors, is experiencing much higher infection rates and has nearly 10 times the number of daily deaths from COVID-19 as its neighbors. Perhaps COVID-19 isn’t quite as dangerous as some people claim it is, but it’s clearly dangerous enough to be concerned about.

Of course, a powerful government is also a clear source of danger, too. More than 1,000 people were shot and killed by police last year. Presumably several others were shot but merely injured. Even if your government isn’t shooting at you, there are other clear and present dangers it can present as well. Perhaps it can incarcerate you and keep you in a crowded cell in the middle of a pandemic. 

That’s why, when this is all over, we will need to have a serious talk about the powers our local, state, and federal governments assumed for themselves in this time of crisis. We will need to not only discuss the benefits to public health and the reductions in infections, but also the economic costs and consequences that were incurred along the way. 

Part of that conversation, however, needs to include the powers our governments had before the crisis that directly prevented people from protecting themselves. 

Since the beginning of March, several organizations have voluntarily cancelled their events, starting with SXSW on March 6, nearly two weeks before Gov. Sisolak ordered casinos and other nonessential businesses to shut down for 30 days. More recently, as I mentioned last week, Burning Man and several conferences also canceled or relocated to online-only forums for the year.

Nevada’s casinos never had that option. Nor did Nevada’s schools.

Nevada’s casinos, per Regulation 9 of the Nevada Gaming Commission and Nevada Gaming Control Board, automatically lose their gaming licenses after one month of closure except during a natural disaster. That’s why the Gaming Control Board issued a policy memorandum alongside Gov. Sisolak’s shutdown order detailing the circumstances under which casinos and other gaming license holders could close their operations through the duration of the shutdown order. This was necessary, at least legally and bureaucratically, because nonrestricted gaming licenses (the sort held by casinos and so-named because there are no restrictions on the number of slot machines or table games operated by the license holder) are scarce, transferable, and tied to specific properties. Without Regulation 9, it would be trivially easy for casinos to secure licenses for competing casino properties and close them.

As a consequence of that regulation, however, every casino in Nevada faced two equally unpleasant choices until the first shutdown order was issued. Either they could leave their doors open to a rapidly declining number of patrons (restaurant visits had declined by more than 50 percent year-over-year by the time Gov. Sisolak issued his first shutdown order; casino traffic undoubtedly didn’t look much better), potentially exposing their workers and patrons to a highly infectious disease. Or they could shut their doors, lose their license, and permanently go out of business.

In that context, Gov. Sisolak’s shutdown order actually did the casinos a big favor. It let them do something they couldn’t do for themselves under existing Gaming Control Board regulations. It let them shut their doors while there was still money in their pockets, sit the pandemic out, send their workers home (some with pay, some sadly without) and keep their gaming licenses after the pandemic was over. Granted, it did so by forcing every casino in the state to do so, but the alternative under existing laws and regulations was forcing every casino in the state to remain open to exercise their gaming licenses. 

Casinos, however, are made of people, just like any other hierarchical organization, and these people have preferences, fears, desires and powers of their own. For example, administrative staff might be able to work from home through the pandemic, but the current state of drone technology does not allow us to, say, remotely service or disinfect slot machines. Consequently, just as there’s no guarantee casino patrons would have risked exposure by entering a casino, there’s also no guarantee that floor workers would have voluntarily exposed themselves to the virus. 

This dynamic, of course, is not unique to the casino industry. The automotive industry, which wasn’t shut down by government writ, initially sent its administrative staff home. That, however, wasn’t nearly enough. Once line workers started getting sick and dying, it didn’t take long for them to stop showing up to work. Factories started closing soon after. Nowadays, the automotive industry and its suppliers are looking forlornly at the process involved in getting the entire industry back into production, just like our tourism industry.

Of course, many of Nevada’s workers are parents. Knowing that a highly infectious, novel disease was entering their neighborhoods, many of us undoubtedly wanted to protect ourselves and our children from exposure. An easy way to do that would be to keep them at home instead of sending them to school. In Nevada, however, per NRS 392.122, students are only allowed up to 10 excused absences per year. There are exceptions, especially if the student has done the coursework in their absence, but they’re not particularly well-advertised and they require the cooperation of teachers, faculty, and district staff. Consequently, many conscientious parents would have faced a deeply unpleasant choice between protecting our families by keeping our children at home and potentially holding them back a grade, or risking our family’s health by sending them to school.

Once again, Gov. Sisolak’s shutdown order did our compulsorily attended public schools a big favor. Instead of having to come up with both in-person and online lesson plans for various ever-changing cohorts of students, all of Nevada’s public educators could focus their attention on exclusively providing online coursework. This simplified their jobs greatly while also granting bureaucratic license to those parents who preferred to keep their children from possible infection. It also conveniently prevented schools from either overcoming severe illness-related absenteeism, as the New York Mass Transit Authority recently faced, or facing a wildcat strike from teachers refusing to show up to work where they might potentially infect themselves. 

To be clear, none of these shutdown orders did anything to increase anybody’s liberties. They merely shifted the direction that existing government compulsion was applied. Casinos and schools were previously compelled to remain open; now they’re compelled to remain closed. Casino workers were compelled to show up to work; now they’re compelled to file for unemployment. Students were previously compelled to attend school; now they’re compelled to stay home. If we’re going to have an intellectual discussion about our freedoms and the role of government in our lives, and not just an emotional one, we need to understand how the powers of government were exercised upon us before this crisis.

We also need to understand our powers as individuals as well. As sizable as the protests throughout the country were, they represent a small minority. Two-thirds of Americans are concerned their state governments will lift restrictions on public activities too soon, not too late. Gangs in Brazil and El Salvador are enforcing quarantine measures where their governments are either unwilling or unable to do so. The protestors might want everything to get back to normal so they can buy their grass seed and recolor their hair, but that requires people to be willing to sell them their grass seed and recolor their hair. Some people will do so, but many of those who don’t have to won’t.

Something which all of us should remember, whether we’re inclined to agree with the protestors or not, is that there are limits to the powers of government and those limitations are not wholly defined by the Constitution or any other body of law. They are primarily defined by what we’re willing to do — and by what we’re not. If we’re willing to stay home for Nevada to arrest the spread of the pandemic, we will do so. If we’re not, we won’t. And if we’re not willing to reopen Nevada, it won’t matter how loudly a minority yells on Capitol grounds or what emergency directives are issued — we won’t do that, either.

David Colborne has been active in the Libertarian Party for two decades. During that time, he has blogged intermittently on his personal blog, as well as the Libertarian Party of Nevada blog, and ran for office twice as a Libertarian candidate. He serves on the Executive Committee for both his state and county Libertarian Party chapters. He is the father of two sons and an IT professional. You can follow him on Twitter @DavidColborne or email him at [email protected].