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Avid Smoker Can’t Fight New Ban in Clayton, Mo.

ST. LOUIS (CN) - A man cannot sue a Missouri suburb over its anti-smoking ordinance, the 8th Circuit ruled.

Arthur Gallagher sued the city of Clayton, suburb of St. Louis, after it banned smoking in certain public places in 2010. Gallagher claimed that the law unconstitutionally prevented him from smoking outdoors.

Gallagher described himself as a Clayton resident who regularly uses the city's parks and "ecstatically enjoys smoking tobacco products while doing so."

He argued that smoking is a new fundamental right "because of tobacco's ancient traditions in American history."

Gallagher also claimed that smoking constitutes part of an existing fundamental right to bodily integrity, which is similar to one's right to engage in private sexual activity or a woman's right to an abortion.

But a federal judge didn't buy it, and a three-judge panel of the 8th Circuit affirmed dismissal Thursday.

"The alleged right to smoke in public is not so deeply rooted in the nation's history and tradition, and it is not implicit in the concept of ordered liberty," Chief Judge William Jay Riley wrote for the court. "As such, it does not fall within the 'liberty' that is specially protected by the due process clause. The district court did not err in dismissing this claim."

Judges Lavenski Smith and Steven Colloton concurred with Riley.

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