Warning: devil's advocate argument.
The most fundamental liberty of man is the right to own property and control his own destiny. The two are inseparable. It stands to reason that any devaluation of his property through the actions of others (without his consent or participation) is a "taking" of his property and a violation of his liberty. What was once worth X is now worth X-Y because someone else's direct actions. Kirk's argument, as I understand it, is that such a taking is one of the protections that justifies the existence of government.
In theory, it's no different than a neighbor breaking a window or rutting up the yard. Legally, we call it "harm" and it does not always have to be tangible.
It has always been acceptable to control behavior for the protection of rights or the prevention of harm had that action been allowed to take place. Behavior control that forces people to pay for the bad choices of others is entirely different because it isn't protecting any rights (and in fact violates them).
And finally, there's the argument that all local government is voluntarily participatory. Not unlike the HOA, the choice to live within a particular jurisdiction comes with the acceptance of all of its laws and ordinances.
It's nice to wax eloquently about the full compliment of freedoms and little to no government control, but there's a fundamental contradiction that rears its ugly little head when you go this route: in the absence of said government, there is no means to control the behavior of others except what one can do through physical force or persuasion. Might makes right becomes the reality. So governments exist for the purpose of formalizing and centralizing the authority of the people, but in doing so we necessarily abdicate a subset of our rights to the government. However, self-government is an open door to the expansion of tyranny simply because of the way it operates.
The happy medium is unattainable long term because people will always act in their own self interests and if given the power to do so, why would we expect anything different? Do we opt for anarchy and hope that those around us will live according to the same rules (which if they are libertarian are contrary to human nature at its core)? Or do we acknowledge the futility of humans to live together en masse without some form of formal governing body?
I'd be happy as a clam for someone to come up with an answer, but I have yet to see one postulated that doesn't violate the laws of nature. And any solution that ignores human behavior is doomed to failure from the start.
