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Posted on 03/04/2005 5:15:52 PM PST by Know your rights
Can California have its marijuana and smoke it too?
Since voters passed the Medical Marijuana Act in 1996, the state law has been seemingly in contradiction with federal laws that say marijuana is an illegal drug under any circumstances.
The U.S. Supreme Court is now reviewing Ashcroft vs. Raich, in which a decision is expected any day regarding the federal government's authority over the matter.
And according to Americans for Safe Access, a group working for medical marijuana rights, now may be as good a time as any for a ruling to be made.
"Right now, the Supreme Court is definitely oriented towards state rights," said campaign director Hilary McQuie. "I don't want to make a bet, but that more than any other factor could be in favor of the Reich decision."
California resident Angel Raich, a prescribed medical marijuana user, sued the federal government in 2002 to challenge federal laws that banned her from using the substance under the Medical Marijuana Act.
After the act passed, federal agents began periodic raids in California to break up marijuana cooperatives, saying that the federal Controlled Substance Act (CSA) does not recognize medical marijuana.
While the US Constitution grants policing power to states, it stipulates that the federal government may intervene when the situation involves commerce between states.
According to court documents, the federal government believes it can override the state law using the CSA because there are sales taking place.
But a Dec 16, 2003 ruling by the Ninth Circuit Court of Appeals decided that using "the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." The government's appeal of that decision landed the case in the Supreme Court in April of 2004.
Patrick Murphy, a California drug policy expert, says that the case could easily go either way at this point; regardless, Californians who support medical marijuana shouldn't panic if the court rules in favor the government.
"The notion of an individual in possession is now a question that a state can make a judgment on and this decision won't overturn that," Murphy said. "More likely, this could settle the question of whether state law is trumped by federal."
The Drug Free America Foundation, an umbrella group that filed a brief in favor of the government's position, did not return calls from The California Aggie for comment.
Despite the assurance that medical marijuana users would still be protected under state law, some wonder whether the federal government could use a win to conduct more frequent raids.
Murphy said the likelihood of such action is low, although the government may still decide to target doctors in an effort to make an example of them.
"But you have to have someone out there willing to make the arrest, and then you also have to have someone willing to prosecute it, and it's just not a very good use of resources," he continued. "Frankly, drugs just aren't a priority for the federal government anymore."
Even a ruling in favor of Raich, although viewed as a big boost for medical marijuana advocates, is something McQuie said is only a minor protection in the larger picture.
"It doesn't end the fight for medical marijuana if it wins because we need to have it rescheduled at the federal level," McQuie said. "But it is a move in the right direction."
His conclusion was that the Feds can't regulate guns within x distance of a school. I'll buy that.
Your point?
Thanks for the straight answer.
Is there some reason you won't give an equally straight answer on the substantial effects test?
Good.
Your point?
My point is to get a simple yes/no on whether you agree with Justice Thomas on the substantial effects test.
This is not a simple yes/no situation for everything you might think it applies to.
As I said before, Thomas was addressing the substantial effects test in all its applications. He was not limiting those comments to drugs or guns.
Enough playing around, what's your point?
That is not the question.
The question you keep dodging is whether you agree or disagree with Justice Thomas' comments on the substantial effects test.
Let's try this:
James Madison to Joseph C. Cabell 13 Feb. 1829
Letters 4:14--15
For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it."
"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."
Do you accept that as the Founders' original intent of the power to regulate commerce among the several States?
I'm not a libertarian. Sorry.
Libertarian ping.To be added or removed from my ping list freepmail me or post a message here.
You're confused because you don't understand that these cases aren't about guns *or* drugs. They're about federalism, the Constitution's Commerce Clause, and the extent of the power given to Congress by that clause.
Read the lower court's Raich decision for an explanation of what's going on: HERE.
The case is a slam dunk. The Court will side with the Feds. And I hope all the "Conservatives" don't start whining when the precedent is used to shoot down State anti-abortion and gun freedom laws.
So you're against federalism. Well, maybe you can transport yourself to 1859 and feel better?
Also, when did salon.com become a good source? This is getting into scary territory for backing up the pro-drug side.
Let me think about that for a moment. I understand that under our system, the Constitution sets limits on the Federal government, and does not give it powers that are not enumerated (theoretically speaking, of course).
That sounds plausible at first read, but taking it a bit farther, your logic is that the 2nd Amendment is a limitation on the Federal government, but not on the individual states. But, by that argument, wouldn't the States be able to pass laws which affect areas denied to the Federal Government by other areas of the Constitution -- such as free speech or protection against unreasonable search and seizure? (Not that this hasn't already been done in many ways.)
As far as you not trusting the Feds about our RKBA, I'd say neither the Feds nor a good number of the states are to be trusted.
Huh? Since it's obvious from your earlier questions that you don't understand the case, I gave you the link to the decision at issue so that you could maybe read it. I never even gave you my opinion; regardless, whether I'm "against federalism"--whatever that means--is irrelevant to the facts of the case.
They used to.
Some states even had a state sponsored and state supported religion (Congregationalism). "State government support for Congregationalist churches did not end until 1818 in Connecticut and not until 1834 in Massachusetts."
-- mb-soft.com/believe/text/congrega.htm
The U.S. Constitution's Bill of Rights, as originally drafted and ratified, only applied to the federal government. The states were guided by their own state constitutions.
The 14th amendment, ratified in 1868, was used by the courts to "incorporate" some of the BOR and make them applicable to the states. Some examples:
The 1st amendment "Freedom of Speech" was incorporated in 1925 in Gitlow v. New York,
The 1st amendment "Freedom of the Press" was incorporated in 1931 in Near v. Minnesota.
The 4th amendment "No unreasonable search" was incorporated in 1949 in Wolf v. Colorado
Since the early 60's, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment).
The one problem with incorporation is that the USSC now interprets the amendment for all states. If nude dancing is protected "speech" under the 1st amendment, then all states must allow it. Flag burning was deemed constitutional by the USSC and must be allowed by all states. I'm sure you can think of many others.
Imagine if the 2nd amendment were incorporated and a liberal USSC ruled that "bear arms" did not include concealed carry. Or that "arms" were limited to rifles.
The Founding Fathers trusted their state. They were proud of the state in which they lived. They even identified themselves by their state.
To think that they would entrust their basic rights to the newly formed federal government is laughable.
Go to: http://www.usconstitution.net/consttop_bor.html and read Bar to Federal Action and Incorporation.
I think he might have a point wrt the "Render unto Ceasar" reference. Ceasar is getting due an ass kicking over the Commerce Clause, IMHO.
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