Arizonans Concerned About Smoking is pushing a statewide ban on smoking in private restaurants and bars. The group argues that a ban is necessary to protect the rights of nonsmokers to be in smoke-free environments. But ban proponents misunderstand the nature of rights in a free society.
I have a right to smoke, and I also have a right not to smoke. But I only have those rights when I'm on my own property. When I voluntarily walk into someone else's bar or restaurant, my right to smoke or not to smoke is no longer an issue, because I'm on his property, not mine. If a bar owner chooses to allow smoking on his property, that's his choice. He has every right to allow smoking, just as he has every right to serve apple pie.
A smoking ban is an attack on freedom and an attack on property rights. Proponents of the ban want government to grant them the power to walk onto someone else's property and have things exactly the way they want them. And that means sending the police after business owners who do not bend to their will. Property owners who refuse to comply will risk fines and jail time.
Even if a majority of Arizonans favors the ban, that does not change the basic fact that a ban violates the rights of property owners. America's founding fathers understood the dangers of unfettered majority rule. The U.S. Constitution, including the Bill of Rights, contains numerous direct and indirect provisions for the protection of property rights against democratic majorities. Similarly, the Arizona Constitution provides that our state and local governments "are established to protect and maintain individual rights."
Government buildings are different, because they are not private property. Individuals have little choice about whether to enter a government structure. If you're like me, you do not go voluntarily to the Motor Vehicle Division to get a new license or to the courthouse to fight a traffic ticket.
We could talk about the importance of property rights to the economy. After all, Arizona restaurant and bar owners have invested time, money and energy building their businesses, and they made those investments because they expected government would respect their property rights. If society is to remain productive, government cannot arbitrarily take away people's rights to use their property as they wish. But the real issue is freedom: government cannot be allowed to infringe on the property rights of individuals.
We could also talk about the health of workers exposed to secondhand smoke, and the scientific research that has attempted-in vain-to find a link between environmental tobacco smoke and cancer. But even if environmental tobacco smoke were proven to cause substantial health risks, there would be no cause to regulate it in private establishments. When you walk into a smoky restaurant or bar, you can tell immediately that smoke is present, and you can choose to stay or leave. For comparison, it is infinitely more difficult to detect the presence of salmonella in a chicken sandwich, so a stronger case can be made for regulating the cleanliness of restaurant kitchens.
If you are looking for a smoke-free restaurant, you are in luck. Almost all restaurants nowadays choose to have separate smoking and nonsmoking sections, if they allow smoking at all. That is the product of the free market: Over the last 40 years, as smoking has declined in America, nonsmokers have demanded smoke-free restaurants, and business owners have supplied them.
If you are looking for a smoke-free bar, you will have a more difficult time. But if a bar is too smoky for you, go to another one, or open your own bar and cater to nonsmokers. Either way, you have no right to use government to force an owner to make his private property smoke-free. By imposing such restrictions, the proponents of a smoking ban risk causing more harm to society than secondhand smoke could ever do.
Mark Brnovich, J.D., is Director of the Goldwater Institute Center for Constitutional Government.