Smoke 'em if you got 'em ...Parte deux

This from Newsday:

Judge upholds NY smoking bans after private Players Club sues to defend pipe ceremony

By LARRY NEUMEISTER

Associated Press Writer

May 25, 2005, 9:21 PM EDT

NEW YORK -- A judge has tossed out a lawsuit brought by a 115-year-old private club that sought to strike down smoking bans so it could continue to honor its members _ who include Walter Cronkite and Carol Burnett _ with pipe ceremonies.

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

"Individuals have no `fundamental' constitutional right to smoke tobacco," (emphasis mine) the judge wrote. "While individuals' freedom of association, freedom of assembly and freedom of speech merit constitutional protection, there is no basis for concluding that the smoking bans infringe those rights."

He said the smoking bans target conduct _ smoking in certain places _ rather than speech, association or assembly, which are not regulated by the statutes.

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

The judge suggested that the ceremonies at the club's Gramercy Park facility still might be able to occur after a substitution of "suitable non-tobacco products." (maybe they can import some of this from Vermont).

The Players Club filed the lawsuit in December 2003 after health inspectors ticketed it for keeping ashtrays behind an office desk. A telephone message for comment left with a club lawyer was not immediately returned Wednesday.

The city smoking law went into effect in March 2003, banning smoking from all restaurants, bars, offices and private clubs with paid staff and requiring the establishments to remove their ashtrays. The state law went into effect in July 2003.

The Players Club had claimed that scientific evidence of second-hand smoke's health effects was bogus and that the ban violated its rights to due process and equal protection.

Besides Cronkite and Burnett, the club counts among its roughly 700 members Angela Lansbury and Timothy Hutton.

Did I read that right? The judge stated that individuals have no 'fundamental' Constitutional right to smoke tobacco? While admittedly the action of puffing away on a heater cannot be found in the Constitution, what can be found in the Constitution is this:

"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." (10th Amendment)

Hmm... must've slipped his mind. I'm not arguing against the judge's decision here. What I take with great umbrage is what the judge is using to justify his decision. Using that logic, anything under the sun or any activity that a judge takes exception with and that is not enumerated in the U.S. Constitution would be subject to confiscation or worse.

Heck, since parts of the Constitution apparently don't mean anything to anybody anymore, maybe we should just hand it over to Iraq. Perhaps they'll have better luck with it.