Judge Upholds NY Smoking Bans

AP ^ | 5/25/05 | Larry Neumeister

[TKDietz]

Were those arguments made in this case? In what context did the judge make the comment about smoking not being a fundamental right? You don't know any better than I do what happened in that court, yet you call the judge an idiot and a whacko Marxist and say he should be "impeached, charged with theft and thrown in prison." All we have to go on is what was written in a couple of newspaper articles. All I can find is that the Players Club argued that the laws violated its members' First Amendment right to "expressive association," along with some equal protection and due process argument. They may not even have made any kind of "takings" argument. There may very well have been no discussion about a bundle of rights, and if that is anyone's fault it's the counsel for the Players Club.

I don't like these laws either. But the courts aren't the ones passing them, it's voters and their elected representatives. Go arrest them and put them all in prison. Trial level judges aren't the ones writing the laws. Their decisions don't even establish authoritative precedent. He just hears the arguments made by the opposing sides and examines the relevant statutes and goes by the precedents established by the appellate courts. If either side doesn't like his rulings they can appeal to a higher court and maybe eventually get their cases heard by the US Supreme Court. Maybe we should try the appeals process before we go lynching trial level judges who are probably just doing their jobs as best they can given the written laws and the established legal precedent.

[MarkL]

Can't agree with you.

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

A fed0eral judge would be well within bounds to nix the state law under an individual's right to lawfully use his property.

Correct me if I'm wrong, but a judge has to rule on a case the way it's filed, doesn't he? If the appeal was filed as a property rights case, then he might have ruled as you see it. However, it was filed as a fundamental constitutional rights case, and the judge had to rule on that specific case.

Mark

[Gabz]

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.

Trying to get an attorney to take one on is difficult at best, let alone outrageously expensive

[sergeantdave]

A judge can't just look at the facts in a case. He's expected to draw on previous rulings and have enough common sense to consider basic constitutional issues in a case like this. If he can't do that, he shouldn't be a judge. Impeach him.

[unseen]

Just because a judge says it is legal does not make it legal....and that is the end result of judical activism. People lose the respect of the law. I see in 10 or 15 years that Judges will not be looked at in the same light as they are today. They will have sunk into the 39% popularity. The judges have lost the respect of the majority of the population now when they lose the respect of the police and military that is when revolution is born. Looking back at the American Revolution the same series of events took place. With the population losing respect for the king, the judges and then the army. Those who do not know history are doomed to repeat history.

[TKDietz]

"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."

I agree wholeheartedly. I hate these stupid nanny state laws. I wish the courts would grow some gonads and declare some of these laws unconstitutional. These nanny state fanatics want to rule every aspect of our lives and most politicians are either nanny staters themselves or too afraid to go up against them. They are ruining this country, smothering us with laws.

[republicofdavis]

"He's expected to draw on previous rulings and have enough common sense to consider basic constitutional issues in a case like this. If he can't do that, he shouldn't be a judge. Impeach him."

One of the sillier statements I've ever seen on FR (and that's saying something). Judges are supposed to rule on the issues put in front of them. You might want to read Scalia's majority opinion in the Beef marketing case the other day. He said that although there might be other reasons that the program should be struck down, there was not a basis to strike it down for the reason presented to the court. Perhaps Scalia should be impeached.

[republicofdavis]

"Correct me if I'm wrong, but a judge has to rule on a case the way it's filed, doesn't he?"

You are correct. I am amazed at the lack of insight displayed on this thread to the irony that so many who would normally cry "judicial activism" when a law is struck down by a judge based on their political philosophy, are attacking this judge who is approving the validly enacted laws of the people's representatives.

For the record, if I were in charge I would not have passed such a law. But I'm not.

[republicofdavis]

"I wish the courts would grow some gonads and declare some of these laws unconstitutional."

Man, that sure sounds like judicial activism.

[sergeantdave]

You may be right, MarkL. Nothing that comes out of the court these days surprises me. Of course, though, the right to associate with smokers in a building I own is also a property rights issue, but this judge would need the telescope on Mt. Palomar to see it.

[jcparks]

The Constitution limits the powere of the government, not what "individuals" can do. This judge is a result of the democrap controlled "edukation" system. This piece of shit cannot even read.

[TKDietz]

It's only judicial activism if you disagree with their decisions. Haven't you figured that one out yet? It would be fine to declare this anti-smoking ban unconstitutional, but declare any law people like unconstitutional and all of the sudden the judge is a judicial activist.

I'm being a little flippant here, but that is the way people react. Would turning over some of these nanny state laws be judicial activism? That depends. I think the government has been making increasing encroachments on our rights. For instance I think there is a very good argument here that we have the right to use and enjoy our private property and if we want to allow people to smoke on our private property then it should be our right to allow that. I wouldn't call it judicial activism if a court saw it my way. I'd call it right.

[tahiti]

"...except in the case of interstate trade"

Not necessarily true.

No law can violate the Bill of Rights.

For example, through the "commerce clause" Congress "regulates" the newspaper business.

But Congress cannot "regulate" the content of newspapers because of Amendment I.

The "right to smoke" on private propery emanates from Amendment IX.

"The enumeration in the Constitution of certain rights, SHALL NOT be CONSTRUED to DENY OR DISPARAGE others (rights) RETAINED BY THE PEOPLE.

A citizen has the right, "retained by the people," to consume the chemical, substance, food of their choice, in the quantity of their choice, and for the reason of their choice.

[republicofdavis]

This story really needs more details, which is always the problem with reading press accounts of judicial decisions.

"The judge rejected the argument the laws caused a prohibition on a club tradition in which members are honored with pipe ceremonies, which involve smoking on the club's premises."

This is from the linked report. If this was actually the argument that the Club used it would be pretty stupid. However, I'm not really certain that this was the basis of the suit.

Re judicial activism, you seem to have a pretty good understanding of it.

[tahiti]

"There is no recognized fundamental right to smoke tobacco."

Amendment IX

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

The judge is wrong.

The constitution says nothing about "fundamental" rights.

It clearly states, textually, "rights."

It has been "liberal" judges, primarily from the Warren Court, that has restricted the liberty of citizens by only defending "fundamental" rights, because implementation of socialism could not be done without the wiping out of most of our liberties.

[republicofdavis]

"The enumeration in the Constitution of certain rights, SHALL NOT be CONSTRUED to DENY OR DISPARAGE others (rights) RETAINED BY THE PEOPLE."

Exactly how we got the "right" to abortion. Are you sure that we should have judges deciding which unenumerated rights are encompassed by the Ninth?

[republicofdavis]

"It has been "liberal" judges, primarily from the Warren Court, that has restricted the liberty of citizens by only defending "fundamental" rights, because implementation of socialism could not be done without the wiping out of most of our liberties."

Actually, the notion of "fundamental rights" in due process and equal protection cases long predates the Warren Court

[sergeantdave]

The issue of association - the right to gather with other cigar smokers and light up on private property - was brought up. That's an opening big enough to drive a truck through and issue a ruling based in favor of the individual and his right to use his property.

What other "silly" issues were you referring to?

[tahiti]

"Exactly how we got the "right" to abortion."

The "right to abortion" came about because the Supreme Court arbitrarily decided that a fetus was just human tissue until "viability" in Roe v. Wade.

Since a fetus is just tissue, similar to a kidney or an eye, then the "right to privacy" dictates that the owner of that tissue decides what to do with it.

Call a fetus a "human being," due all of the rights, privileges, and immunities as any other human being, then the abortion issue is solved.

I believe Cong. Ron Paul has introduced such legislation in the House of Representatives.

[DaoPian]

Best part of the deal for the 'natives' around here is that even though they aren't official, they are declaring a sovereign nation that straddles the US/Canada border. Read:Smuggling - humans, cigarettes, etc.
http://www.pressrepublican.com/Archive/2005/04_2005/041820052.htm
Plus, they get to do casinos and sell tax-free gasoline.