As we debate gun rights, the absence of any reference to the original intent of the Second Amendment — the right to smoke — is understandable, but still noteworthy.
It started with Ben Franklin and James Madison. Franklin was addicted to his pipe and smoked incessantly during Constitutional debate and drafting sessions. Delegates complained that the pall of smoke made it impossible to concentrate. Franklin countered that the same would be true of him if he could not smoke.
But Franklin saw he was outnumbered and, ever the realist, recognized that the complainants would have as much right to be free of smoke as he had to smoke unless he could enshrine in law his right to smoke.
Madison, too, loved to smoke. He normally refrained from lighting up during formal sessions, but he kept his cigars in his breast pocket, at the ready.
Madison realized that, if he didn’t support Franklin, the Virginia tobacco lobby would crucify him. And he became convinced that, with the pressure of these sessions building, he too might need the protection of a right to pull out a cigar and light up (the first known articulation of the principle of concealed carry).
Once an acceptable draft of the First Amendment was taken care of, Franklin and Madison turned to an initial version of the Second Amendment:
A well-regulated public domain, being necessary to the full enjoyment of life in a free State, the right of the people to keep and bear smoking devices, shall not be infringed.
Their effort, however, drew substantial criticism:
Abraham Baldwin (Georgia): In the preamble, the reference to “a well-regulated public domain,” while seeming to protect a right, actually puts in government hands the legal authority to regulate that right. This would allow the government to determine the manner, and even the location, in which smoking implements are stored, distributed, and utilized. Such a “right” is no right at all. Moreover, if the right does not apply to the private domain, it would seem that the government might go so far as to ban smoking devices therein. Better that the Constitution should be mute on the issue.
Alexander Hamilton (New York): A so-called right to “keep” speaks only of “possessing,” and a right to “bear,” only of “carrying.” We all know that, as would be his right, Mr. Madison “possesses” cigars, which he “carries” in his breast pocket. But such carriage and possession are of no use to him if his right to “use” them is not also guaranteed.
Gouverneur Morris (Pennsylvania): This amendment, as worded, is dangerously vague. It leaves open two related possibilities: (1) that the right, which applies to “smoking devices,” of which the pipe and cigar are our only current examples, might also apply to devices, developed in the future, whose insalubrious effects we cannot foresee; (2) that future jurists might strictly construe our intent as applying only to the two smoking devices we know, in which case, the right would not attach to new devices which, nonetheless, might have had beneficial effects. All told, we would be better off focusing our efforts on a matter — guns, for example — about which there is no ambiguity.
These views carried the day, and the delegates turned their attention elsewhere.
While we cannot know for certain what results a Second Amendment right to smoke would have produced, we can draw on what has happened in the absence of such a right, and make some reasonable guesses:
Hundreds of thousands, maybe millions, more Americans, whose right was protected from infringement, might have suffered and died from pulmonary or cardiac diseases, or lung cancer.
An economy that might, correspondingly, have staggered under increasing health-care costs and declining worker productivity.
A pro-smoking political force, made up of a powerful tobacco industry and a legion of die-hard tobacco addicts, that might have made it impossible to repeal so destructive an amendment.