There Is No Constitutional Right to Smoke (CA Version)

There Is No Constitutional Right to Smoke (CA Version)

Laws that limit how and where people may smoke should survive a legal challenge claiming that smoking is protected by the state or federal constitution. Smoking is not mentioned anywhere in either constitution.

Nevertheless, some people may claim that there is a fundamental “right to smoke.” These claims are usually made in one of two ways: (1) that the fundamental right to privacy in the state or federal constitution includes the right to smoke, or (2) that clauses in the state and federal constitutions granting “equal protection” provide special protection for smokers.

Neither of these claims has any legal basis. Therefore, a state or local law limiting smoking usually will be judged only on whether the law is rational, or even plausibly justified, rather than
the higher legal standard applied to laws that limit special constitutionally protected rights.