Local Smoking Ban

[Ziggurat]

So, then you favor tyranny. If a majority of people thing that black people are offensive then we should let the government ban them from restaurants, I guess...

Help! I'm bein oppress'd! Come and see the violence inherent in the system!

The two are not at all comparable. This is a sham argument and you know it. The constitution establishes principles of basic freedoms that the majority cannot choose to take away from the minority under any circumstance, and I never suggested otherwise. Smoking is not one of these rights, we've already been over that (I can amost hear the "I'm not listening! I'm not listening!" refrain from Shanek as I write this). Equal protection under the law IS one of these rights, and that necessitates that one cannot discriminate based on race is a public setting. But outlawing smoking is not an equal protection issue. Smoking is, in a legal sense, a voluntary activity. There is no good legal distinction between "smokers" and "nonsmokers", there does not need to be, and in any case the same activity is forbidden regardless of which group you belong to. So you have absolutely no point. But that never stopped you before.

 

[shanek]

The two are not at all comparable.

Of course they are! There is no logical difference at all! If you can ban smoking and perfume because a majority of people find it offensive then you can do the same for blacks or whathaveyou!

Why do you refuse to face the consequences of what you're proposing?

The constitution establishes principles of basic freedoms that the majority cannot choose to take away from the minority under any circumstance, and I never suggested otherwise.

YES YOU DID!!! You did exactly that when you based your argument on the fact that a majority agrees with it!

Smoking is not one of these rights,

Fine; show where the Constitution says that. If it doesn't, it is a right, according to the 9th Amendment.

Besides, what we're talking about here is not really the right to smoke; it's property rights. I should have the right to set whatever rules I want regarding any legal activity such as smoking on my own property. If you don't like it, don't come onto my property.

we've already been over that

No, I've been over that. You've ignored it.

 

[Ziggurat]

Fine; show where the Constitution says that. If it doesn't, it is a right, according to the 9th Amendment.

Your reading of the 9th is nowhere supported by the supreme court. If EVERYTHING not mentioned by the constitution was a right, there would not have been a need for the first eight amendments. The ninth amendment, contrary to your delusions, only means that there are SOME fundamental rights not explicitly outlined, it does not say or mean that everything not mentioned is a fundamental right. The supreme court still gets to decide what counts as a fundamental right and what doesn't if it isn't explicit. And nothing they've ever said even suggests that smoking is a fundamental right.

Here's a little rundown on some of the issues:
http://caselaw.lp.findlaw.com/data/constitution/amendment09/

First great quote (emphasis mine):

"Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions."

Here's another choice quote, this time directly from a supreme court decision upholding the right of privacy in regards to contraception:

"Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government."

The argument used was that privacy was a sort of corrolary of other basic rights (free speach, search and seizure, due process, etc), and that the 9th amendment meant that the fact that it wasn't explicit didn't mean it wasn't still fundamental. But the reasoning involved does not give you any fundamental right to smoke tobbaco, just as it does not give you any fundamental right to smoke marijuana.

Besides, what we're talking about here is not really the right to smoke; it's property rights. I should have the right to set whatever rules I want regarding any legal activity such as smoking on my own property. If you don't like it, don't come onto my property.

It's not private property, it's a place of business. The fact that business is being conducted is what invites government interference. That's also what lets the government outlaw prostitution, even though the supreme court recently ruled that the government cannot invade the private sex lives of consenting adults. You may not like that, but that's the reality of the situation.

Every other argument you advanced in your post is predicated on smoking being a fundamental right, which it is not. I will therefore not bother to address any of those ridiculous claims any further.

 

[shanek]

The ninth amendment, contrary to your delusions, only means that there are SOME fundamental rights not explicitly outlined, it does not say or mean that everything not mentioned is a fundamental right.

That's not what it says. It says anything "retained by the people."

It's not private property, it's a place of business.

It's not private property? The government owns all of the property the bars and restaurants operate on?

It's a PRIVATE BUSINESS operating on PRIVATE PROPERTY, and denying it just makes you look pigheaded.

That's also what lets the government outlaw prostitution,

You're not winning here...you keep bringing up all of these victimless crimes that the government has no business restricting, and actually just make things worse when they try.

Every other argument you advanced in your post is predicated on smoking being a fundamental right,

No, it's not! I've been arguing for the rights of business owners to make their own rules. If you can't even be bothered to understand what it is that I've been arguing, then what are you even doing here?

 

[Ziggurat]

That's not what it says. It says anything "retained by the people."

In other words, you've got no support from the supreme court for your reading. That's what I thought.

You're not winning here...you keep bringing up all of these victimless crimes that the government has no business restricting, and actually just make things worse when they try.

Whether the government SHOULD restrict them has absolutely nothing to do with whether or not they can. They can outlaw prostitution, and they can outlaw smoking. I never said these were good ideas, but outlawing prostitution is constitutional, outlawing marijuana is constitutional (are you going to try to argue otherwise?), and outlawing smoking would be constitutional. Does the simpe distinction between "can" and "should" continue to escape you?

No, it's not! I've been arguing for the rights of business owners to make their own rules.

First you try to argue that my view would allow businesses to discriminate on the basis of race, then you argue that businesses can do whatever they want (which would include discriminating based on race). Which is it, Shanek?

 

[shanek]

In other words, you've got no support from the supreme court for your reading.

So? That's just argument by authority. The Supreme Court has made a lot of kooky interpretations of the Constitution, many of which have been overturned.

I never said these were good ideas, but outlawing prostitution is constitutional, outlawing marijuana is constitutional (are you going to try to argue otherwise?),

Yes: Why did they need a Constitutional amendment to ban alcohol but not marijuana?

First you try to argue that my view would allow businesses to discriminate on the basis of race,

It would. I presented the logic, and you haven't even tried to refute it.

If simply because a majority is in favor of a smoking ban means they can ban smoking, then what is there to stop them doing the same for blacks?

then you argue that businesses can do whatever they want (which would include discriminating based on race). Which is it, Shanek?

It's hardly inconsistent. The Constitution is there to restrain government, NOT the people. Every employer should have the freedom to hire whomever they want, or not. Interfering with that interferes with free market forces.

 

[Silicon]

Shanek,

Go to law school. I swear.


Citing Supreme Court precedent isn't argument by authority.

The Supreme Court IS the ultimate authority on what is and isn't constitutional. By definition, their rulings can't be unconstitutional.

So your reading of the 9th Amendment is the unconstitutional one.

They pull their reading out of hundreds of years of precedent and jurisprudence. You pull yours out of your hat.

 

[shanek]

The Supreme Court IS the ultimate authority on what is and isn't constitutional. By definition, their rulings can't be unconstitutional.

Then why are prior Supreme Court rulings overturned on Constitutional grounds?

 

[Ziggurat]

Then why are prior Supreme Court rulings overturned on Constitutional grounds?

Because they also get to change their minds about what is and isn't constitutional. Duh.

 

[Ziggurat]

They pull their reading out of hundreds of years of precedent and jurisprudence. You pull yours out of your hat.

I don't think it's a hat he pulls it out of

 

[Silicon]

Shanek,

You say this law isn't constitutional.

Other people point out that according to the Supreme Court's reading of the Constitution, it IS constitutional.

You refuse to accept that, preferring your own, bizarre interpretation that flies in the face of hundreds of years of legal precident. Apparantly, by your reading of the 9th Amendment, the government can't pass any law against anything! (Except treason, the one crime outlined in the Constitution.) Everything else is a right "retained by the people"??? Bizarro!


So if the Supreme Court doesn't decide what's constitutional, and you get to conveniently throw out all precident...

I think your main beef is with Marbury V. Madison.

I suggest starting a new topic for that one, it's a little bigger than a local smoking ban!

 

[Tormac]

Well If as Silicon said

The Supreme Court IS the ultimate authority on what is and isn't constitutional. By definition, their rulings can't be unconstitutional.

And then as Ziggurat explained that supream court rulings have been over turned because

Because they also get to change their minds about what is and isn't constitutional. Duh.

Then I have a feeling that argument that the government has the right to do this (instead of just the power) is not very convincing. I do think that the groups in the discusion are talking past each other on this one, as one side is saying that the government has the right (i.e. power) to enact a smoking ban, while the other is arguing that the government is not right to do so.

Why does the government not decided that since gasoline fumes contain carcinogens, for the safety of gas attendants, refinery workers, and the public at large gasoline could not be sold to public? I do not see any difference in the reasoning. Desiel fumes, automobile exhaust, they are definatly not good for ones health.

To some the smoking ban is symbolic of a government that seems increasingly willing to limit the freedom of private citizens. Rather like the patriot act, or seat belt laws.

The argument that it is necessary to protect the health of restaurant and bars works is not a satisfying one to me. Maybe I underestimate the hazards of second hand smoke, and to be in and around it is a death warrant. If that is the case, again I say the appropriate answer would be to ban it. But as has been pointed out, the public would not stand for that. That is one thing that I do not like about the smoking ban. The incremental way that government is putting its hand into the everyday decisions that business owners can make about how their property is used. I agree, as you said the objection is larger than just the smoking ban.

But I want to shift the thread away from the halls of our judiciary, and back to the bars of Toledo if I may. . .

 

[Tormac]

Restaurants, and especially bars are for the most part selling atmosphere. I like to go to Rusty's and enjoy a rob-roy or two while listening to the live bands. I find the experience very pleasant. I hate the fact that my favorite sport jackets end up smelling like cigarette smoke when I leave Rusty's, but in some ways, cigarette smoke is part of the atmosphere. When I think of Rusty's I see muted light filtered through cigarette smoke and the simple beauty of scotch and vermouth.

I have many friends that smoke. I don't get it personally, but they seem to enjoy smoking while "unwinding", shooting a game of pool, or just "shooting the bull". I'm the only one of my friends that enjoys the taste of whisky. If I was expected to go outside, drink my drink in a designated "drinking" area without the real fireplace, leather seats, and live music, I don't think I would bother to go to Rusty's.

The smoking ban necessarily degrades the quality of service that bars offer, that service being the atmosphere. That some people do not like cigarette smoke I understand. Shoot I sympathize with that feeling. If I was a smoker I would not go to a “non-smoking” bar. This law lessens the quality of life in Toledo, in my opinion, on two grounds. It hurts the quality of the service that Toledo bars can provide. It also is one more area where government metals in the business of private business. Both are undesirable I feel.

I still have not seen an argument that is convincing why there cannot be smoke friendly and non-smoking bars. Most bar tenders and waiters that I've known personally smoke. Most people who play in bands that play in the bars I like smoke. As I picture the people in Rusty's, the Brake room, the Village Idiot, or Miss Cue, my memory recalls that the majority of them smoke (happily enough many of these bars are in the burbs, and not under the Toledo ban). I find it difficult t swallow that the smoking minority is forcing their will on the public with their evil smoke.

I suppose to some extent the free market is going to decide, as there are many bars in the “burbs” that advertise that they are smoke friendly. The coalition of restaurant and bar owners from Toledo that are fighting the ban have predicted that it is going have a strong negative impact on their revenue. Most of the people that I go bar hopping with smoke, and they all plan to stay in the burbs.

 

[shanek]

Shanek,

You say this law isn't constitutional.

No, I'm saying that the law can't be justified just because there's no "right to smoke" in the Constitution. That's two entirely different things, people!

Are you all even TRYING to understand what I'm saying?

 

[Tormac]

I wanted to get back to the notion that a ban on drinking in a public bar is nothing like a ban on smoking. Obviously the dangers of smoking and the dangers of consuming alcohol are different.

The danger of second hand smoke is subtle, hard to quantify. I live with my brother and he smokes, I have many friends who smoke, and I often hang out in bars filled with second hand smoke. While I am sure it is not doing me any good, so far it has done me no detectable harm. It is hard to quantify how many people "die" from second hand smoke. Some may say that it is impossible to make the direct correlation.

Now after consuming even one alcoholic drink one's motor skills and judgment in impaired. One has become more likely to be involved in a accident well before one reaches an illegal blood alcohol content. The degradation of people's motor skills after the consumption of alcohol under the illegal limit is easy to test and verify. Even if one has two glasses of wine with dinner, as one drives home, one is putting the general public at risk. The link to alcohol consumption and injurious, even fatal accidents is easy to make.

One can choose to not go into a smoky bar. One cannot choose to only drive on streets where there is no one affected by alcohol use. One can choose not to get a job in a smoke filled environment, one can not choose not to get in an accident with someone who has been drinking.

If alcohol use is banned from public bars and restaurants people can obviously still get drunk, but at least they will be more likely to pass out on the floor at home, rather then behind the wheel driving home from the bar.

 

[Ziggurat]

Restaurants, and especially bars are for the most part selling atmosphere. I like to go to Rusty's and enjoy a rob-roy or two while listening to the live bands. I find the experience very pleasant. I hate the fact that my favorite sport jackets end up smelling like cigarette smoke when I leave Rusty's, but in some ways, cigarette smoke is part of the atmosphere. When I think of Rusty's I see muted light filtered through cigarette smoke and the simple beauty of scotch and vermouth.

There will be plenty of atmosphere without the smoking. The atmosphere will just be a little clearer.

This law lessens the quality of life in Toledo, in my opinion, on two grounds. It hurts the quality of the service that Toledo bars can provide. It also is one more area where government metals in the business of private business. Both are undesirable I feel.

I think you really oversetimate the impact this is going to have. Seriously, I never hear anyone in California pine for the days without a smoking ban. You can still find plenty of what you describe, just without the smoke. The predicted problems, if they happen at all, will only be short term as people adjust to what it's like without smoking. Some bars will lose certain customers and gain certain other ones, but on balance I don't think there's going to be as much change as you fear. The ONLY difference I notice between California bars and ones out of state is the smoke, everything else runs the same spectrum. Hell, you might even find out you like the places more without the smoke.

P.S. it's meddle, not metal

 

[peptoabysmal]

Is there any evidence that shows that second hand smoke differs in any significant way from directly inhaled smoke? If not then the argument appears to be that if you are smoking the cigarette, it is dangerous, but if someone is standing next to you inhaling the smoke from the same cigarette, it is safe. What is it in the 12 inches of air that the smoke passes through that changes it from carcinogenic to safe?

The same thing that changes two deadly elements into harmless table salt. Concentration and state change.

 

[peptoabysmal]

I think
1) It is going to be an economic mistake for Toledo, as people who smoke will go to bars and restaurants in the burbs that do not have this smoking ban.

Hasn't proven to be as much of an economic disaster as the Democrats in California.

2) It is a case of intrusive government trying to protect people from themselves. I do not think local government has the right to limit the intended use of a legal product in a setting that has traditionally been designed for its use.

There is also money to be made by career bureaucrats in agencies that regulate such things. I would like to know exactly where the extra "sin" taxes on cigarettes go to benefit.

3) It is a slip down a slippery slope where pleasurable activities of detrimental worth are banned. Today it’s smoking, tomorrow its alcohol, then next week sandwich cookies. Sure second hand smoke may be a hazard to others, but then again drunks are a hazard to sober people. The consumption of unhealthy foods leads to an increased economic burden on society with increase health care costs.

How about those Big Macs that are making our children dangerously fat?

 

[Jaggy Bunnet]

The same thing that changes two deadly elements into harmless table salt. Concentration and state change.

Any evidence for the harmful level of concentration or when this state change occurs?

 

[Tormac]

Ziggurat commented

I think you really oversetimate the impact this is going to have. Seriously, I never hear anyone in California pine for the days without a smoking ban. You can still find plenty of what you describe, just without the smoke. The predicted problems, if they happen at all, will only be short term as people adjust to what it's like without smoking. Some bars will lose certain customers and gain certain other ones, but on balance I don't think there's going to be as much change as you fear. The ONLY difference I notice between California bars and ones out of state is the smoke, everything else runs the same spectrum. Hell, you might even find out you like the places more without the smoke.

Well maybe. I have to ask if you smoke, or if you have friends who smoke. I do not smoke, but as I have mentioned, I have family and many close friends who do. They hate the smoking ban. They always gripe about it. I go outside and hang out with them sometimes to continue conversations while they smoke. It is very unpleasant, especially in the winters here in Northwest Ohio. I can understand how they could come to see themselves as an oppressed minority. As I posted before, if I was expected to stand outside in the weather to dink my whisky, instead of leisurely drink it while listening to the live jazz bands by a real fireplace, I doubt I would bother to go to Rusty's. As it is my smoking friends have stopped going to bars and restaurants in Toledo, preferring Maumee (the burb).