A Stitch in Haste

A while back I blogged, twice, about cities establishing "no residency zones" where sex offenders, particularly child molesters, could not live (e.g., within 1,000 feet of a school or day care center). The example that had particularly caught my eye was Miami Beach's 2,500-foot ban that, given the municipality's narrow geography, effectively redlined the entire town.

Well, recently a federal circuit court upheld a similar ban against a "fundamental rights challenge" (i.e., if a law infringes a "fundamental right" then it is subject to heightened scrutiny and almost certainly unconstitutional). It seems obvious to me that choosing where to live is a fundamental right, but the court in Doe v. Miller disagrees (PDF - 36 pages):

The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care facility, and it does not erect any actual barrier to intrastate movement. In this sense, the Iowa law is comparable to the municipal residency requirements that have been held to implicate no fundamental right to intrastate travel, and less restrictive on freedom of movement than the ban on access to public parks upheld under rational basis review. By contrast, the decisions finding infringement of a fundamental right to intrastate travel have involved laws that trigger concerns not present here — interference with free ingress to and egress from certain parts of a State or treatment of new residents of a locality less favorably than existing residents.

You read that right — the government can't stop you from coming and going, but they can stop you from staying. And there's no real difference, according to this court, between choosing a home and entering a public park. Nope, nothing arbitrary or outcome-determinative in that reasoning, is there?

A guest blawger at Prawfsblawg responds with a refreshing dose of common sense:

I can think of little historical precedent for states preventing citizens from living in homes they can afford to buy, let alone rendering entire cities off limits to undesirables. And it's not far fetched to say that the right to live where one pleases (again, if one can afford to do so) is implicit in the concept of a free society, whatever that means.

"Whatever that means," indeed. One can almost see cities next using eminent domain to drive out sex offenders.

Gideon's Trumpet, guest blawging at Objective Justice, also weighs in and discusses a related case in the Iowa Supreme Court.

I still wonder whether it is relevant — or fair — to distinguish between "reasonable" protection zones, especially around schools and day care centers, and more burdensome restrictions such as Miami Beach's that are, as applied, a de facto banishment from the entire city. The current blawg debate doesn't seem to be addressing that potential compromise position.

So, open thread: is there, or should there be, a fundamental right to live where one chooses, even for convicted child molesters?

POST SCRIPT: For the current jurisprudence on whether something is a "fundamental right" for constitutional law purposes, see Washington v. Glucksberg, 521 US 702 (1997) or this summary.