Posted on 01/13/2005 11:53:07 AM PST by bob3443
Constitutional Arguments Against Smoking Bans
Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Smoking is a freedom of speech i.e. personal liberty. Such bans are tantamount to precluding peaceable assemblage in that those who may choose to smoke would have to separate themselves from the assembly.
Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Converting private property for public use refers to using property for the benefit of the population at large. To wit: condemning land for the use of building a municipal government center. The property owner will receive fair compensation.
If Government regulates the use of private property in such a way as will harm the profitability of a business located on said private property, or the fair market value of the property itself, and by such regulation declare or imply that said property is in fact public, it stands to reason that the government in the position of owing just compensation to the owner of said property.
Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
In order to be compensated for business losses directly attributed to a smoking ban, business owners will have the right to demand a jury trial if such losses are in excess of $20.00
Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
Were a smoking ban to be enacted and said ban was violated by either the owner of a business or a customer of the business, such fines could be no more than a minimum fine imposed on any other minor infraction of the law. Further, any action taken by the enforcing body of the government can not be so excessive as to destroy the business itself. Such action might be, but not limited to. Criminal prosecution, excessive fines, graduated fines, cancellation of food, liquor or other types of licenses or any other action that could be construed to be use of power to intimidate the private property owner or client or guest of said owner.
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Constitution is indeed of the people, by the people and for the people. The passage of any type of ban is a “bad faith”: activity local and state government that violates the spirit and the intent of the Constitution. Such bans further pits the general desires of a specific group of people against the rights of the private property owner and the clients of said property owner.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The rights’ of the people are always preeminent to the rights of the government.
Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. A ban of any kind by its very definition is an abridgement of the privileges of the citizens. Bans create an inequality as they would relate to the protection of the laws.
Amendment XVIII Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress. (The fact that this amendment was repealed I feel speaks to the fact that the government overstepped its bounds by ratifying an amendment that was unto itself patently unconstitutional. It further demonstrates how even as great as our Constitution is, it can still be held hostage when those who govern us lose sight of the true purpose of this document.)
Amendment XXI Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.
((( ping )))
There's a non sequitir for you. What logic lies behind this statement?
Sorry, you lost me there. I won't bother reading any further.
But, lest you get the wrong idea, I believe property owners have the right to set whatever rules they want with regard to whether and where smoking is permitted on their property. (On public property, the public decides, either through a ballot initiative or by proxy through their elected officials.)
What about the right of others to walk down the street and not be forced to inhale poluted air spewed out by someone with a burning pacifier stuck into their mouth?
You have no such right.
To me it should be just like any other health regulation. It shouldn't be allowed to be viewed as a health issue unless there is a overwhelming need and proven scientifically by a majority of reputable scientific minds that ETS is the hazard to health that the antis scream it is.
I think that there may be a Constitutional argument against the regulation of smoking in a privately owned business, I don't think that Halfpenny has hit the right argument yet.
JMO
Sorry, as a smoker I cannot buy into this argument at all. Smoking is not a form of speech. However, if you get throat cancer it may restrict or even prohibit your speech.
If burning a flag is free speech, why NOT smoking?
However the rest of the sentence is correct: Such bans are tantamount to precluding peaceable assemblage in that those who may choose to smoke would have to separate themselves from the assembly.
Thanks AD for the heads up!
You have no such right.
Restaurant kitchen exhaust-fan odors "encroaching" on people walking by, perfume, cologne, vehicle exhaust, farts, etc. And what about my right to not hear the delusional man sporting a tin-foil cap preaching on the street corner
Just what political point do you suggest people are trying to make by the act of smoking?
Are we saying that you can burn the flag in a public place, but don't inhale the smoke?
Whether to smoke or assemble, they'll have to make a choice. Go naked or assemble, be a public nuisance or assemble, .... Life is full of choices.
Reply to post 14...
No political point at all. I just get so frustrated as private business owners are forced to change what goes on in their businesses due to political correctnes BS. You can't even smoke in bars anymore in many places. In California you can't smoke OUTSIDE. These local ordinances are ridiculous, alothough I agree the constitution does not allow for smoking. It also does not allow for abortion, but that didn't stop anyone now did it?
If a smoker wants to smoke, my answer to him is, "Certainly,BUT SMOKE THE DAMN WEED OUTSIDE. I DON'T NEED CANCER FROM YOUR BUTT."
If your point was that flag-burning is not or should not be protected under the free speech clause, I disagree. That's another thread, though.
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