(subtitled “Where the Gwinnett County Commission Went Wrong on the Smoking Ban”)

in response to Dan Miller, who wrote:

I may not have counted exactly “right”, but you used the work “right” at least twelve times in your article. I respect your position on most issues, but I am curious as to where you think “rights” are defined…is it the Constitution, the Bill of Rights, state and local laws, or what? Is there a right to go naked in public? Does anyone have a right to be protected from nudity? If laws can restrict public nudity, why can’t they also restrict smoking. I’m not in favor of smoking or public nudity…just trying to draw an analogy. Why do you oppose allowing a society (country, state, county, city, etc) to set it’s own boundaries?

Why don’t you complain that smoking is not allowed in the seats at Turner Field or the Georgia Dome? Do you think you would enjoy going to a baseball game at Turner Field or a football game at the Dome if smoking was allowed and if you had to sit next to a smoker? Maybe your answer is the same as it is to diners…if you don’t like it go to another stadium.

The health issue may not be a good enough reason in your mind, but I doubt that the ordinance would have passed if it were phrased honestly. People may not be getting “sick from” second hand smoke, but more and more are getting “sick of” it and want to live in a society that does everything it can to get rid of it or keep it out of the public eye.

Our foundational rights come from God, not from government. To quote men much wiser than I, speaking on principles to which I humbly subscribe…

“Rights are not gifts from one man to another, nor from one class of men to another… It is impossible to discover any origin of rights otherwise than in the origin of man; it consequently follows that rights appertain to man in right of his existence, and must therefore be equal to every man.” [Thomas Paine]

“Reason, necessity, tradition and religious convictions all lead me to accept the divine origin of these rights. If we accept the premise that human rights are granted by government, then we must be willing to accept the corollary that they can be denied by government. I, for one, shall never accept that premise.” [Ezra Taft Benson]

“Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” [Frederick Bastiat, "The Law"]

This government will not longer stand following the day that it abandons its unwavering commitment to each individual’s inalienable rights, given by God and not by man, to the free exercise of conscience, the right to and control of property, and the protection of life.

The abandonment never occurs in a day, nor a week or a month. It happens incrementally, over a long period of time. Smoking bans are but a single step in the procession toward what the Bible defines as a day when every man “does what is right in his own eyes.” And that day, my friend, is just a few away from the end.

A balancing act

It is the role of government to balance the rights of individuals to the free exercise of conscience, the right to and control of property, and the protection of life. If any privilege accorded by government does not have as its foundation one of these basic principles, then it is not a valid right.

Likewise, if the balancing of one individual’s rights against the equally valid rights of another doesn’t “make sense,” then the government has not done its job properly. In other words, balancing rights does not, of necessity, mean that one man’s rights must be subjugated to the rights of another. In fact, because they are given by God and not by man, they cannot be.

“Are there not, in reality, underlying, universal principles with reference to which all issues must be resolved…? It seems to me we could relieve ourselves of most of the bewilderment which so unsettles and distracts us by subjecting each situation to the simple test of right and wrong. Right and wrong as moral principles do not change. They are applicable and reliable determinants whether the situations with which we deal are simple or complicated. There is always a right and wrong to every question which requires our solution.” (Albert E. Bowen, Prophets, Principles and National Survival, P. 21-22)

I will illustrate how the right to and control of property is the foundational principle underlying our discussion of the smoking ban, and how a total and unexcepted protection of this right by government does not infringe on the equally valid rights of others. You will then understand how the Gwinnett County Commission failed in its duty to protect certain individuals’ right to and control of property by enacting a smoking ban.

Public vs. Private Property

There are only two types of property, for the purposes of our discussion: public and private.

All property belongs to somebody– God. During our lives, we are given stewardship over some of his property… whether it is money, real estate, the clothes on our back… we “own” things for a time. This is called private property.

Other property is “owned” by “The People” corporately, for the good of “The People.” “Public” property includes publicly-owned buildings, most roads, highways and other rights-of-way, to name a very few. (The government is prohibited from owning certain types (uses) of property, usually in situations where the use competes with the use of private property. To be specific, government cannot operate a chain of for-profit restaurants.)

The law can, and does, treat these types of property differently without conflict. “The People” can “set boundaries” for the proper use of their own (public) property that they cannot and should not set for private property.

Law enforcement understands this distinction clearly. There are some deeds that, while they may be illegal if done on public property, they are not illegal if done on private property; say, in the privacy of your own home.

Let’s use your example:

“Is there a right to go naked in public? Does anyone have a right to be protected from nudity? If laws can restrict public nudity, why can’t they also restrict smoking.”

There may or may not be a right to go naked “in public.” The point is that “The People” have the right to regulate this activity on their own property. The government cannot, however, make you keep your clothes on in the privacy of your own property.

You have no “right” to be protected from nudity; however, you do have the freedom to avoid private property where nudity is permitted, if it offends you. You do have the right to regulate nudity on your own property.

The government (always read “The People”) can restrict both nudity and smoking on its own property. However, it does not have the authority to infringe on the right to and control of private property.

(A point of clarification lest the nit-pickers argue that I condone standing in front of a picture window in the buff… courts have defined a “public place,” for the purposes of law enforcement, to include any place where the deeds of the actor can be viewed by anyone other than the actor’s family. The exhibitionist would be “in public” even though she would be standing in her own living room.)

A restaurant is private property, the type of property of which “The People” cannot prevent individuals from owning and/or controlling. Government cannot legally prevent the owner of the restaurant from using that private property as he/she sees fit. Specifically, the government cannot legally prevent a restaurant owner from smoking on his own property or from allowing those invited onto the property to do likewise.

Smoking ban proponents argue that they have a right to eat dinner in a smoke-free environment. But unless you are the property owner, you don’t even have the right to be there, much less the right to dictate the air quality. You enter the restaurant by invitation of the property owner, to conduct yourself under the rules set by the property owner.

Does the restaurant owner have the right to come into your home and demand that you put out your cigarette, or insist that you allow him to light up? Of course, he does not. Neither do you have the right to insist that the air over and in his property be smoke-free.

You have no “right” to be protected from second-hand smoke; however, you do have the freedom to avoid private property where smoking is permitted, if it offends you. You have no property rights on property owned by someone else except those privileges accorded you by the property owner.

With this understanding, all rights and freedoms exist in harmony. Your right to free exercise of your conscience is protected, as is your right to protect your own life. Meanwhile, the restaurant owner’s right to use his property as he sees fit is likewise not infringed upon by an act of government.

What about zoning laws?

I hear quite often: “You always talk about following the Land Use Plan…. about the need to strictly adhere to zoning regulations. Isn’t that government interference with the use of private property?”

No, it isn’t, actually. It is the government fulfilling its duty, as delegated by “The People,” to balance the equally valid right of individuals to own and to control private property.

No individual can control and use private property in such a manner that it interferes with the equally valid right of another individual to control and use property. For example, one individual cannot build an asphalt plant in the middle of a residential subdivision because it can be shown that the first use would result in a devaluation of the other properties.

Zoning laws exist to protect the right to and the control of property by the homeowner. They also exist to protect the rights of the guy who wants to build the asphalt plant. Two individuals with equally valid property rights– and thus the need for the “balancing act” and regulation by “The People” to achieve that balance.

The right of conscience and the protection of life (the rights of the non-smoker in our discussion) can exist in harmony with the right of the restaurant owner to control his own property, all without any government regulation. The balancing of equally valid property rights, however, often require government involvement.

It is all so very simple, as long as you accept the foundational principles described above.

Disturbing thought processes

The final points of your argument concern me the most:

“The health issue may not be a good enough reason in your mind, but I doubt that the ordinance would have passed if it were phrased honestly. People may not be getting “sick from” second hand smoke, but more and more are getting “sick of” it and want to live in a society that does everything it can to get rid of it or keep it out of the public eye.”

First, I hope that you don’t condone deception as a means and method to infringe on someone’s right to and control of property. Of course, if you are a ban proponent you first had to justify, in your own mind, the restriction of an individual’s right to property to further your cause. I suppose that, when logic fails, deception is a legitimate tool to achieve an illegitimate goal.

Second, the fact that one individual may not like or agree with how another individual controls his own property does not justify infringing on that individual’s God-given rights. We may not want to see the “Love Shack” porn shop in Peachtree Corners, but its existence is “The People’s” recognition of John Cornetta’s right, within regulations that protect the equally valid rights of nearby property owners but does not infringe on his, to use his property as he chooses.

Also, it matters not how many people are “sick of” second hand smoke. If an individual’s God-given, foundational right to and control of property can be subjugated by the majority, then we are left unprotected by our government and the law means nothing. If the law cannot protect the rights of one, it is powerless and government will have failed in its duty to “The People” and to God.