HOME-GROWN VICTORY

9th Circuit Clears Path For Medical Marijuana

On Tuesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals
defended the all-American principle of federalism, ruling that patients who
possess and use locally produced medical marijuana in the states that have
OK'd the practice cannot be prosecuted for violating federal drug prohibitions.

Federal prosecutors argued that two California plaintiffs -- one patient
who grew her own pot and another who obtained it from friends -- were
engaged in "interstate commerce," thereby giving federal authorities the
right to intervene under the Constitution's commerce clause. A trial judge
had refused to issue an injunction preventing U.S. authorities from
arresting the patients.

The appeals court reversed, stating, "the cultivation, possession and use
of marijuana for medicinal purposes and not for exchange or distribution is
not properly characterized as commercial or economic activity."

This decision is good news, and not only for residents of the states within
the 9th Circuit (including Nevada) who amended their laws to accommodate
this treatment of seriously ill patients. It's also an affirmation that
there's a clear delineation between federal and state power, and that the
commerce clause of Article 1 does not give activist federal lawmakers and
bureaucrats the right to meddle in every aspect of American life.

Randy Barnett, the Boston University constitutional law professor who
represented the patients in court, said the case marked "the first time
there's been a ruling that the application of the Controlled Substances Act
to the cultivation of medical cannabis is unconstitutional."

The appellate judges sent the case back to U.S. District Court for trial.
And if the case eventually reaches the U.S. Supreme Court, the patients may
prevail. Two years ago, when the high court justices refused to allow
medical marijuana laws to stand based on a "medical necessity" defense,
Justice Clarence Thomas stated that other reasons consistent with the
Constitution might make the medicinal usage of marijuana legally acceptable.

A challenge citing the widespread abuse of the commerce clause might have
been what Justice Thomas had in mind. In 1995, the court ruled the commerce
clause did not give Congress the authority to ban the possession of
firearms near schools. Five years later, the justices tossed out a federal
domestic violence law, again holding -- in part -- that by using the
commerce clause as its rationale, Congress had stretched it beyond reason.

In a later decision, 9th Circuit Judge Alex Kozinski noted that if the
logic used by Congress in passing the firearms law were to stand, it would
"obliterate the distinction between what is national and what is local and
create a completely centralized government."

Reason magazine's Jacob Sullum points out the medical marijuana case marks
the third time this year the 9th Circuit has built on the reasoning of the
Supreme Court's 1995 decision. He writes: "Taken together, these decisions
help revive the idea that the commerce clause is not a blank check."

As the founding principle of a federal government with limited, strictly
enumerated powers gains renewed strength, individual liberty will be
resuscitated as well.