Monday, January 02, 2012

Hall Monitor Nation

LEX NON ORITUR EX INJURIA: The law does not arise from a mere injury.

LEX NON FAVET DELICATORUM VOTIS: The law does not favor the wishes of the dainty.

LEX NON CURAT DE MINIMIS: The law does not care about trifles. 

-- Ancient legal maxims

Many people -- even those who do not associate the Gem State exclusively with toothless, mulletted rednecks in pickup trucks with bird dogs and gun racks, nutty militiamen out in the back woods, and white supremacists -- think of Idaho as a "red" state.  Idaho certainly has a fairly reliable record of voting Republican, at least during the course of my lifetime.  It might come as a surprise, then, to learn that the capital of this reputedly conservative state -- whose city council members once passed a resolution supporting Obamacare -- aspires to compete with places like New York and San Francisco in the Nanny State Playoffs.  And it is well on its way there.

Exhibit A: the Boise City Smoke-Free Air Ordinance, which took effect on New Year's.  It is now illegal, in the city of Boise, to smoke, among other places: 

-- In any enclosed public place, including privately owned bars and restaurants; 

-- In common areas in apartment buildings, condos and trailer parks (!); 

-- In private clubs;

-- In sports arenas;

-- In any common use area;

-- At bus stops;

-- Outside city buildings;

-- At sidewalk cafes;

-- In outdoor service lines (i.e., people lining up outside to acquire some service);

-- Within Grove Plaza downtown, and on 8th Street downtown, between Main and Bannock;

which leaves smokers with about 2 square inches within the city of Boise.  This ordinance even reaches into private residences that serve as child or adult day care centers, health care facilities, or private businesses accessible to at least one employee.  It makes it illegal to permit smoking in "public places" as defined in the ordinance, even though the public place is privately owned.  It also specifically gives private persons the right to press charges against offenders. 

So much for the "land of the free and the home of the brave."  Now we are a nation of hall monitors. 

Fortunately, there are some business owners who are gearing up to file a lawsuit against the city to challenge this idiotic ordinance, to the extent it reaches into the affairs of private property owners.  But the dismaying thing is that a lot of people seem to like this sort of government overreaching.  After all, they say, we don't smoke; why should we be subjected to other people's smoke?

But the popularity of cigarette smoke is beside the point.  A bigger question for the pro-smoking-ban bunch is: why should you be allowed to harness the coercive police powers of the state for the purpose of sparing yourselves a mere inconvenience?  Why should scarce police resources be diverted to protecting your delicate sensibilities?  Why should you be allowed to deprive the owners of private property of the right to decide whether to allow smoking on their premises?  Why should you deprive other, tax-paying citizens of the full enjoyment of public property, especially outdoor public property, just because they smoke?  Do they somehow pay less taxes than you do?  I myself have never smoked, and do not care for the smell of cigarette smoke.  But the solution to my problem is very simple: I just don't patronize businesses that allow smoking on their premises.  No muss, no fuss!  And if somebody near me is smoking out in the open air, so what?  Within a second or two, the smoke will blow away. 

And by the way, this ordinance is bound to strike where least expected.  As bad as an assault on private property rights is, this smoking ban is a lot more than that.  Consider the following provision, which defines "smoking" (emphases added):
“Smoking” means inhaling, exhaling, burning, carrying, or possessing any combusting (heated, lit, or smoldering) tobacco or any other substance, whether contained in a cigar, cigarette, or pipe, or any other object. Smoking does not include possession of an unlit or unheated cigar, cigarette, or pipe. Smoking does not include use of an e-cigarette which creates only a vapor without any smoke.
Notice that this definition of "smoking" is broad enough to cover other burning substances besides tobacco, such as incense.  The only religious exemption to the smoking ban is American Indian ceremonies.  The anti-incense crowd already exerts a disproportionate influence at local churches.  How long will it be before somebody calls the cops on the Catholic Church for incense at Mass, or in a Eucharistic procession?  Worse yet (and heaven forfend): how many parishes will buckle and cut out incense altogether for fear of prosecution?  Would this not be unconstitutional prior restraint?  Have the enemies of the Church not got enough bludgeons to beat her down with?

Don't think it can't happen.  Look at what already has happened.

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