The war over motorcycle helmets is now in its 44th year. Everything that can be said has been said. And, yet the argument persists like malaria.
If you are reading this, you probably do not appreciate helmet laws. But, let’s start by being honest, anyway. Okay?
Why This Issue
There is an overwhelming preponderance of epidemiological evidence that motorcyclists who wear helmets are less likely to die than motorcyclists who do not wear helmets. No matter which side of the argument you are on the numbers do not lie. It is a statistical fact that laws that compel bikers to wear helmets save lives exactly as passing new laws that would forbid people to eat at McDonald’s, or smoke, or drink whiskey, or be born on an Indian reservation, or work at a desk would save lives.
But the helmet war is not about saving lives. The war is about what constitutes the proper promotion of “the general welfare.”
Russia compels bikers to wear helmets. Should we be more like Russia? When the war over helmet laws began the answer was obvious to most Americans. Russia was a dictatorship and we were free. They were wrong and we were right.
Now the United States, Russia and the People’s Republic of China are all big, happy, trading partners. And, freedom may no longer be our pre-eminent national goal. What we may be trying to become is a more “civilized” nation. You know, like France?
Slaughter On The Highways
In 1965, Ralph Nader began his public career by publishing a book called Unsafe At Any Speed. Americans had been alarmed about the “slaughter on the highways” of tens of thousands of people every year and what Nader was able to do was single out a villain.
General Motors, Nader alleged, kept selling a car called the Corvair even though the auto maker knew that that car, mostly because of its innovative rear engine configuration, had suspension and handling problems.
And, at the time, in 1965, most reasonable people thought that the government should pass laws that prevented big, soulless corporations from selling products or services that hurt individual consumers. And, by inference, they shouldn’t be allowed to sell products that hurt the “general welfare” either.
Our Government Acts to Protect Us
The year after Nader’s book was published, the same year the Big Red One moved into Vietnam, Congress passed the National Highway Safety Act and a slew of reforms ensued. Bumper heights were standardized. Crumple zones and safety cages were incorporated into car designs. Gas tanks were redesigned so that they did not blow up. Dash boards were padded. Steering wheels were built to collapse under impact and seat belts became standard equipment.
This same 1966 law also withheld federal highway funds to states that refused to enact mandatory motorcycle helmet laws. The helmet law provision was practically invisible when the law passed. This provision passed without debate.
The idea, what lawyers called the “original intent,” of the publically debated portion of the act was to keep big automakers from selling American citizens cars that were not as safe as they should be.
The helmet law provision was the only part of the act that compelled vehicle operators to purchase at their own expense and use a safety feature. For example, automakers were told to put in seatbelts but people did not have to use them.
Subsequent laws, however, that did compel drivers to wear seatbelts then shoulder harnesses; to put their children in special seats; then to put their kids only in back seats; to not drive with a blood alcohol level higher than .1 percent then not higher than .08 percent; to not hold a phone while driving and so on are all descended from the original helmet law. And, the burden of those laws fell not on manufacturers but on citizens.
Between 1967 and 1975 every state except one passed a mandatory helmet law for motorcyclists. The one holdout was California which led the world in both motorcycle registrations and fatalities.
The Helmet War Starts
The California Legislature failed to pass a helmet law every year because motorcyclists told their representatives not to vote that way. Outlaw motorcycle clubs lobbied politicians. Easyriders magazine editorialized.
For example, in 1973, a Burbank City Councilman proposed a mandatory helmet law. A hundred bikers showed up to protest. The Hells Angels Motorcycle Club told the Los Angeles Times that the club would bring “at least 500 members” to the Council meeting if and when the law came up for a vote. It did not.
For bikers in the early 1970s, California was a beacon of freedom as Massachusetts had been to patriots in the 1770s. And, nationally bikers began to talk back. Lawyers were hired. Lawsuits were filed. The Bill of Rights was studied by disheveled guys named Bam-Bam and Pickle.
Win Some Lose Some
Every argument raised against helmet laws now was raised then. Sometimes the courts agreed and sometimes they did not.
The Illinois Supreme Court ruled that the “legislature may not…under the guise of protecting public interest, interfere with private rights.” A Michigan Appeals Court ruled that the “logic” used by proponents of helmet laws “could lead to unlimited paternalism.”
But, a Massachusetts court heard exactly the same arguments and ruled exactly the opposite way. Massachusetts found that “society” had a vested interest in protecting motorcyclists from themselves.
“…the public has a vested interest in minimizing the (public) resources directly involved,” the court wrote. “From the moment of injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job; and, if the injury causes permanent disability, may assume the responsibility for his and his family’s subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.”
Three organizations advocated against helmet laws.
The American Motorcycle Association (AMA) founded in 1924, and which by definition was the exact opposite of an outlaw organization, began to actively lobby in the early 1970s “against unconstitutional and discriminatory laws against motorcyclists.”
Beginning in late 1971, Easyriders magazine began to sponsor a group called the National Custom Cycle Association. Within three months the organization had members in 44 states and had changed its name to A Brotherhood Against Totalitarian Enactments (ABATE.) ABATE has now moderated its name to mean American Bikers Aimed Toward Education but it still, for the 36th year in row, exists primarily to fight motorcycle helmet laws.
The Modified Motorcycle Association (MMA) formed in California in 1973 to protest helmet laws and laws that told bikers how high they can rise their handlebars.
Don Pittsley, a patch holder in the Huns Motorcycle Club, actually convinced a Congressman named Stewart McKinney to sponsor an amendment to the 1966 Act that would repeal the provision that mandated that states enact helmet laws. Wouldn’t you have loved to have been there to see that?
Bikers went to Washington to testify before Congress and the same never ending debate ensued.
A guy named Bruce Davey of the Virginia branch of ABATE told a House committee, “The Ninth Amendment says no law shall be enacted that regulates the individual’s freedom to choose his personal actions and mode of dress so long as it does not in any way affect the life, liberty and happiness of others. We are being forced to wear a particular type of apparel because we choose to ride motorcycles.”
Bikers’ Right To Choose
By 1975 it was impossible to distinguish between the helmet war and any other front in ever-spreading culture war. So, bikers’ assertion that they had a “right to choose” temporarily flummoxed the other side because it echoed the feminist argument that “women have a right to choose” whether or not to have an abortion.
The argument that prevailed also echoed the sentiment of a conservative philosopher named Gilbert Keith Chesterton . “The free man owns himself, ” Chesterton wrote. “He can damage himself with either eating or drinking. He can ruin himself with gambling. If he does he is certainly a damn fool…but if he may not, he is not a free man any more than a dog.”
Congressman McKinney, friend to the Huns, got more quickly to the point. “My philosophy concerning helmets can be summed up in three words,” he said. “It’s my head.”
Bikers Win! Bikers Win!
The Bill passed the House and in the Senate the revision was jointly sponsored by liberal Senator Alan Cranston of California and conservative Senator Jesse Helms of North Carolina. The Senate passed the revision in late 1975. President Gerald Ford signed the bill into law in May, 1976. And, over the next four years 28 states repealed their helmet laws.
And, gradually, inevitably the rate of motorcycle fatalities rose again. So, within ten years the argument once again revolved around the philosophical question of who was on top in America. The individual or the collective?
The Argument In A Nutshell
In 1987, the journal Texas Medicine published an editorial titled “How Many Deaths Will It Take.” And, it voiced the now familiar opinion that a democracy is a system of government where smart people make stupid people do the smart thing whether they like it or not.
“…civilized society makes laws not only to protect a person from his fellowman, but also sometimes from himself as well,” it said.
Two years later, liberal New York Senator Daniel Patrick Moynihan compared mandatory helmet laws to compulsory immunization. And, those who do not remember Senator Moynihan might need to know that the man was an incorrigible alcoholic who drank himself to death. And also that, never once did he call for stricter drinking laws for drunks.
By at least 1987, then everything that could be said about motorcycle helmet laws had been said and then boiled down to two opposites.
1. Civilized society makes laws to protect a person from himself.
2. It is my head.
But after 1987, something unforeseen happened. Since 1987, the argument has ceased to be about motorcycle helmets. The argument is now over who gets to decide what is “best” for you.
California enacted a mandatory motorcycle law in 1991 not because the Golden State suddenly had less bikers but because the relationship between citizens and authorities was changing and California was and continues to be at the forefront of that change.
The first goal of government is now-it is probably not too crazy to say-to create a “civilized society.” And, the process that actualized that goal has had several pejorative names. The three you are sure to know are “welfare state,” “political correctness” and “nanny state.”
Unfortunately, the civilizing of America has co-evolved with the blossoming of the American police state.
Noise pollution laws; distracted driver laws; anti-smoking laws applied to public and private places; laws that forbid parents from spanking their children; “hate” speech laws; laws that bar people from tying their dogs to trees; restrictions on gun ownership; evolving definitions of words like drunk, married and is; laws that mandate trash sorting and recycling but forbid trash picking; and zero tolerance for law breakers have all appeared as various state, local and federal police departments have grown.
The expansion of police powers in the United States began during the second half of the Vietnam War, during the Nixon Administration, as a means of combating “the drug epidemic” and “domestic insurgency.” Nixon seems to have been genuinely terrified of a takeover of the United States by idealistic hippies. So, he initiated construction of a police state that is now in the hands of all those same idealistic hippies that Nixon so feared.
And, the principal ideal of our most idealistic leaders is to civilize all the rest of us. Whether we like it or not.
Peoples’ Republic of Myrtle Beach
This Fall, the helmet law “debate” is being held in Myrtle Beach, South Carolina and Tennessee.
There is not much to be said about Myrtle Beach except that the next step down there will probably be for them to officially change the city name to the People’s Perfect Republic of Myrtle Beach. It is difficult to comprehend how the latest incarnation of Stalinism popped up in South Carolina. Instead of California or Oregon. But it has.
There is no helmet law in South Carolina but the soviet now running Myrtle Beach has decided that it can regulate helmets under the same case law that allows cities to regulate smoking.
The helmet law in Myrtle Beach is probably an exception. It probably has much less to do with idealistic hippies and the ever-expanding nanny state than it does with chasing the bikers out of town. The People’s Perfect Republic of Myrtle Beach just happens to be using the police to impose its political will.
But then there is Tennessee.
Who would think Tennessee would come to epitomize the Nanny Police State.
Tennessee? Isn’t that where Davey Crockett killed him a bear when he was only three? Beautiful, green, moonshine, country music, scoots and blues, Elvis on an Ironhead Sportster Tennessee? Yep. That Tennessee.
Tennessee passed a helmet law in 1968 and never repealed it. Every year, a bill for repeal is voted down and the arguments on both sides are as familiar as a television commercial you have seen every night for a year.
“It’s about freedom, stupid,” yells one side.
And, the other replies “You’re too stupid to be allowed to be free!”
Before you read any of this you probably had all the arguments for mandatory helmet laws memorized. Well, here we go again. No, it is not an acid flashback.
Tennessee State Senator Doug Overbey explained the civilized side late last week. “It is the individual rider’s responsibility to survive the ride! I agree that riding without a lid feels great up to about 25 mph,” the Senator allowed. “But like the old joke about jumping off a building, ‘It’s not the falling that hurts. It’s when you stop falling it really begins to hurt.’ Simply put, repeal of the helmet law is irresponsibly stupid! And quite possibly the worst thing the legislature could do to harm motorcycling in Tennessee.”
Not Just A Helmet
Sure, Senator Overbey. Politicians know best. That’s why the economy is booming. That’s how we got Osama Bin Ladin. That’s why American schools and roads and airlines are all so good.
You are wise and we are not so we have to wear a helmet. But, why does it have to be a special kind of helmet?
All month, Tennessee has been “cracking down” on “novelty helmets.” Novelty helmets are hard plastic helmets that have padding inside and strap onto your head. They are not officially “approved” by the United States Department of Transportation (DOT) and so they do not come with a “DOT” sticker attached. They are about a quarter the price of an official helmet. So, if you buy one you have to put the official sticker on yourself.
Bikers wear “novelty helmets” because they are lighter and less likely to cause neck injury in a crash, because they are more comfortable and less likely to impair hearing than “approved” helmets.
Senator Overbey’s opinion about helmets aside, no helmet is certified by the DOT for any crash above 25 miles per hour. Nor are laws against “novelty helmets” particularly enforceable. Easyriders magazine, once again, fought against such a prohibition in California in the 1990s and eventually the courts ruled that if a helmet is recognizably a helmet and it has a sticker on it that says DOT the police cannot cite you.
However, Tennessee Secretary of Transportation Mary Peters is trying to legislate around that with new and improved labels on helmets sold in Tennessee. Secretary Peters claims to have everybody’s best interest at heart.
Or, maybe she is being paid in one way or another by some helmet manufacturers but not others.
Or maybe she is trying to prove a point that other people have to do what she says they have to do. Don’t dismiss that conjecture out of hand.
One of the great lights of the hippie counter-culture, the psychotherapist Fritz Perls, once said that “all madness is power madness.” And, it might now be appropriate to wonder if the noble cause of creating a civilized society just might have already crossed a fine line into madness.
Helmets, Helmets Everywhere
Thirty-six states now mandate helmets for minor bicyclists. In other states, like Missouri and Ohio, the prevalence of county and municipal laws that mandate bicycle helmets constitutes a virtual statewide law. In some states, skateboarders, roller skaters, scooter riders and toddlers on tricycles must also wear helmets. In three California cities, Bidwell Park, Chico and El Cerrito, all bicyclists regardless of age must wear helmets.
And, these laws are enforced. They are not just on the books. They are “profit centers” and “enforcement opportunities.”
There is a fairly famous scene in the movie Butch Cassidy and the Sundance Kid that portrays Butch riding around on a bicycle wearing a derby. Know that scene?
Well, if old Butch went to El Cerrito and tried that today he would catch a charge. He would be stopped, detained, frisked, be compelled to identify himself, be checked for warrants and issued a summons and told that if he doesn’t want to go to court he can just mail the city a check. But, if he doesn’t go to court or mail a check he will go to jail.
Five or six years ago a columnist named Mike Rosen writing in the Rocky Mountain News seemed astounded that “our Founding Fathers dissolved our ties with England, fought a war for independence and created this marvelous constitutional republic so that the government could write a law fining parents if their kids ride a bicycle without a helmet.”
Believe it Mike. Civilization has won. At least for now.