Judge Upholds NY Smoking Bans

AP ^ | 5/25/05 | Larry Neumeister

[Crackingham]

A judge tossed out a lawsuit brought by a 115-year-old private club that sought to strike down no-smoking laws so it could continue to honor its members - who include Walter Cronkite and Carol Burnett - with ceremonies that include lighting up.

The Players Club is no more entitled to special privileges with city and state health inspectors enforcing the laws than are pro-tobacco organizations that tried unsuccessfully to overturn them, U.S. District Judge Victor Marrero said Wednesday.

"Individuals have no 'fundamental' constitutional right to smoke tobacco," the judge wrote.

[Mears]

Smokers have been trying to avoid the heavy taxes by buying from Native Americans but now they are no longer allowed to accept credit cards and they are tracking the shipment,via the shipper, in certain states,even if you use a check.

They even put a sales tax on the excise tax in Massachusetts----in other words,they are taxing the tax.

Astonishing,isn't it?

[Gabz]

I wonder if this crossed the minds of those running the bars that have started selling the legal herbal cigarettes?

And they have beaten every violation of the smoking ban they were charged with because of it. Why do you think that did it ????????

[TKDietz]

I don't like these anti-smoking laws either, but the right to life, liberty, and the pursuit of happiness is not from the Constitution. That's in the preamble to the Declaration of Independence. When a judge talks about a "fundamental right," he is using a legal term of art that means a right expressly set out or implied by the Constitution. There are only a handful of recognized "fundamental rights," things like the right to bear children, the right to travel interstate, freedom of speech, the right to bear arms, the right to practice whatever religion you might want to practice, and so on. This significance of this term of art is that when there is an issue before the court involving some government infringement on a "fundamental right," the court holds the government to a higher burden in the standard of review than if the right is not considered a "fundamental right." For instance, the court might require the government to show a "compelling governmental interest" rather than just a "rational relationship" to a legitimate legislative purpose for the law in question to see if it passes constitutional muster. Where there is a fundamental right involved then the law is subjected to a higher level of scrutiny in the analysis of whether it is constitutional or not. A different "formula" is used.

Smoking is not something that has been recognized as a "fundamental right" or a "fundamental interest." The higher courts have rejected that argument, and have rejected all sorts of other claims of fundamental rights, such as the "right" to take illegal drugs, or the "right" to an education, and so on. They are looking for rights expressed in the Constitution or clearly implied by it. Now, the higher courts are not right about everything, but still a trial level judge like the one we are talking about here has to follow the law and accept the interpretations of the higher courts. If he were to rule that smoking is a fundamental right, he would be making a ruling contrary to established legal precedent. His decision would be overturned on appeal.

When this judge said people don't have a fundamental right to smoke. He was making a correct statement of the current law. If he had have ruled differently, he would have been overturned on appeal and he would have gotten a lot of grief by people saying he was trying to legislate from the bench. Man, judges are really under fire these days. They're damned if they do and damned if they don't. If they follow the laws people raise a big stink. If they don't follow the laws people raise a big stink. In fact, it would just give ammunition to those in the executive and legislative branches seeking to rob the judiciary of their Independence so they can do whatever the hell they want to do without having to worry about our last line of defense against them, the courts. The problem here is not the judge. The problem here is that these stupid anti-smoking laws were passed in the first place.

[TKDietz]

That's kind of what I figured. It sure as heck wasn't because there was some high demand from people wanting to smoke cigarettes made out of lettuce and tea.

[Gabz]

While I understand what you are saying regarding the specific wording of this jusdge's ruling - I still believe the ruling itself is fundamentally flawed as it does not address the main issue here, that of private property.

[Gabz]

I've tried several of them, and some are actually better than some mainstream tobacco cigarettes.

[unseen]

Good post but what you forgot to say is that the constitution was written to detail the exact rights that the GOVERNMENT has. Thus it was written to limit government powers. IF the right is not in the Constitution then the FEDERAL GOVERNMENT does not have it. All rights not written are reserved for the STATES or for the PEOPLE.The constitution was written by men who had a deep distrust of government and considered government a necessary evil. The BILL of RIGHTS only list the absolute rights that Citizens have and that under no circumstance can these rights be taken away.

[unseen]

yes it does but the LAW should come first no matter which aisle you sit in

[mysterio]

Well said.

[TKDietz]

I don't know what his ruling addressed. All we have is a short article to go by. I don't know that counsel for the Players Club made any property rights arguments for the judge to rule on.

[sergeantdave]

You are looking at this issue from the wrong end. This is a property rights issue, not an issue of a whacko Marxist judge upholding some edict from a pack of state legislators because it's "the law."

The original Bill of Rights is heaped full of property rights granted to individuals. In your list of "fundamental rights" you did not include the right of property ownership and the right to use that property without interference of the state. That is clearly a "fundamental right."

In this instance, we are speaking of the physical thing called land, owned by an individual.

Property comes with a bundle of rights. They include the right of use, to subdivide, to bar others entry and the right to develop. The property itself doesn't have "rights." The individual has rights in that property he owns.

So when someone reads the 5th and considers the word "seizure" he thinks of a physical grabbing of the thing called property.

But when property is looked at correctly as a bundle of rights, seizure takes on a new meaning.

For example, when government comes along and says you can't smoke on your property, government has seized one of your rights in the bundle - the right of use.

In this case, the idiot judge incorrectly allowed the seizure and theft of an individual's right in property. The judge is not upholding "the law." Rather, he is violating constitutional law, the highest law in the land. That makes what he did wrong. He is an accomplice in theft of property. He should be impeached, charged with theft and thrown in prison.

[Gabz]

What you say is true, the article is rather bereft of details. I am aware, however, of several lawsuits agains thte smoking ban that are all based upon some aspect of private property rights, but I don't remember if this is one of them.

But the fact that this is a private club to me says all that is needed to be said........this has nothing to do with people smoking, but the right of a private property owner to allow them to do so if they so choose.

[Gabz]

WOW!!!!!!!!

You explanation is priceless. Thank you.

It's bad enough these laws have been upheld on private property that is consiered a public place (bar, restaurant) but this is a Private club.........I don't think any of them should be upheld, but ones such as thid should never have been passed to begin with. do not the city councils and legislators have lawyers on their staffs?

[MarkL]

The Government has no 'fundamental constitutional right' that is not strictly defined in the Constitution. After rereading my Constitution I find no where in it that the Government has a right to tell me what I can and can not do to my body except in the case of interstate trade and national security. I did find that ALL rights not spelled out in the Constiution are granted to the STATES and TO the PEOPLE. So government back-off

Actually, as much as I hate the law, the ruling by this judge is correct, and you've even hit on the reason.

The problem is that it's state or local law, not a federal law. The question is not, "where does the federal government get the authority to tell me that I can't smoke." It's precisely because that authority isn't in the Constitution that the federal judge is unable to overturn a local or state law. I think that the judge also used this excuse because had he overturned that law, it would have weakend or overturned any sort of substance abuse laws that are on the books. So, I don't agree that his reason is correct, but the ruling is correct, constitutionally, because the states seem to have the rights to ban smoking in public places, including private clubs.

Mark

[MarkL]

Hommosexual acts in private is ok, just don't smoke while doing so?

If you get caught smoking, I suppose that you could claim that you were just having a butt!

Mark

[Gabz]

because the states seem to have the rights to ban smoking in public places, including private clubs.

The states SEEM to have the right? On what grounds do you base that? I could see it stretched (though dubiously) for places of public accomodation, but I don't see private clubs.

[IGOTMINE]

I knew it without even looking it up.

[MarkL]

You are looking at this issue from the wrong end. This is a property rights issue, not an issue of a whacko Marxist judge upholding some edict from a pack of state legislators because it's "the law."

Then it should have been appealed as a property rights issue, not that "smoking is a constitutional right."

Remember, the judge has to rule on the appeal filed. A judge can not tell someone before him, "Hey, you're doing this wrong! You should do it this way!"

Mark

[MarkL]

The states SEEM to have the right? On what grounds do you base that? I could see it stretched (though dubiously) for places of public accomodation, but I don't see private clubs.

I used the word "seems" because they (state and local governments) have passed laws banning smoking in public places, but also private businesses, and those laws have not been overturned.

Mark

[sergeantdave]

Can't agree with you.

This is a private property issue, not a smoking ban matter.

A federal judge would be well within bounds to nix the state law under an individual's right to lawfully use his property.