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  Lawyers, Guns and Money
Posted by CN Staff on November 16, 2003 at 18:54:38 PT
By Jason Hoppin, The Recorder 
Source: Recorder 

medical In a ruling with medical pot implications, the 9th U.S. Circuit Court of Appeals has ruled that the federal government cannot prosecute an Arizona man who assembled and kept a machine gun at his home but never bought or sold it.

United States v. Stewart, 03 C.D.O.S. 9805, is the latest 9th Circuit case applying the Supreme Court's Commerce Clause rulings. In continuing to push that jurisprudence in bold new directions, the court may be a step closer to handing the government a loss in another significant area -- the Justice Department's crackdown on California's medical marijuana laws.

"Every word in it is magnificent," declared Boston University constitutional law professor Randy Barnett -- who argued one of two pending medical marijuana cases at the 9th Circuit -- after reading Thursday's decision.

Robert Stewart Jr. was investigated by the Bureau of Alcohol, Tobacco and Firearms for selling .50-caliber rifle kits through the mail. But the kits were delivered incomplete -- buyers had to do some machining to turn them into an illegal weapon. When agents raided his home they found numerous guns, including the machine gun in question. The government decided to drop the rifle kit case and instead indicted Stewart for possession of a machine gun.

But Stewart had assembled the machine gun himself, using parts from a variety of sources. And there was no evidence that he intended to sell the gun.

The government argued that because parts of the gun were once in commerce, the Commerce Clause justified the conviction. However, in United States v. McCoy, 323 F.3d 1114, the 9th Circuit recently struck a child pornography conviction, saying the fact that the camera and film had once been in commerce wasn't enough -- the picture itself must have commercial implications.

Judge Alex Kozinski agreed with the logic of McCoy.

"At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless," Kozinski wrote.

He was joined by Judge Thomas G. Nelson in the Thursday ruling. Visiting U.S. Court of International Trade Judge Jane Restani dissented.

The implication for the medical marijuana cases is clear. In one pending case, medical marijuana patient Angel Raich sued to prevent the government from taking away her marijuana. Raich says she grows it at home -- it is neither bought nor sold, and never enters into commerce.

"This case reinforces every argument that we've made in both the Oakland Cannabis Buyers Club and Raich cases, which present as applied challenges to the Controlled Substances Act," said Barnett, Raich's lawyer.

The OCBC case is also pending at the 9th Circuit. Although the Supreme Court has unanimously reversed the 9th Circuit on whether defendants could argue a "medical necessity" defense, the constitutional issues have not been settled.

However, the 9th Circuit -- following the Supreme Court's marquee Commerce Clause decisions in Lopez and Morrison -- has reaffirmed that marijuana can be regulated by the federal government.

But the foundation for those decisions may be eroding.

In a different case over whether doctors can recommend marijuana to their patients, Kozinski has stated, "Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce."

Nevertheless, the government will likely argue that home-grown use does affect commerce, since patients would otherwise have to purchase their marijuana.

Lawyers for patients in the two pending cases -- Barnett, Santa Clara University law professor Gerald Uelmen and Robert Raich, husband of Angel Raich -- said they will call Stewart to the attention of the 9th Circuit panels considering the appeals.

The case also creates a conflict with other circuits, increasing the likelihood that the Supreme Court will weigh in.

But all three found it remarkable that the so-called liberal 9th Circuit is the one court unafraid to apply the conservative Supreme Court's Commerce Clause jurisprudence.

"The 9th Circuit, thus far, is the court of appeals that is taking most seriously the Supreme Court's Commerce Clause jurisprudence," Barnett said.

Raich agreed. "It's a rather delicious irony."

Note: 9th Circuit's Commerce Clause application may have medical pot implications.

Source: Recorder, The (CA)
Author: Jason Hoppin, The Recorder
Published: November 14, 2003
Copyright: 2003, NLP IP Company
Website: http://www.callaw.com/
Contact: bbaraff@therecorder.com

Relate Articles & Web Site:

OCBC
http://www.rxcbc.org/

Supreme Court Clears Way for Medical Pot
http://cannabisnews.com/news/thread17564.shtml

Justices Reject Govt. Medical Marijuana Appeal
http://cannabisnews.com/news/thread17560.shtml

Supreme Court Rejects Anti-Marijuana Case
http://cannabisnews.com/news/thread17557.shtml


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Comment #10 posted by Larry on June 09, 2005 at 11:50:00 PT
Correction: Guns were not illegal
"Robert Stewart Jr. was investigated by the Bureau of Alcohol, Tobacco and Firearms for selling .50-caliber rifle kits through the mail. But the kits were delivered incomplete -- buyers had to do some machining to turn them into an illegal weapon. "

There was nothing illegal about these weapons. It would have been illegal for Stewart to possess a working rifle, as he had a previous felony conviction. It would have been illegal for him to sell a working rifle as a manufacturer or dealer, since he had no federal license. But the buyers were doing nothing illegal in buying the rifles, and the rifles themselves were entirely legal.

(Bummer about Raich, hey?)

[ Post Comment ]

 
Comment #9 posted by ekim on November 17, 2003 at 20:02:02 PT
its Clarks turn now
the debate Rock the Vote Mr Clark said that those who use cannabis were im[paired and kicked out of the service. It is true or not you can not have it both ways.

[ Post Comment ]
 
Comment #8 posted by Patrick on November 17, 2003 at 07:24:36 PT
Wonder why lawyers get a bad rap…
Nevertheless, the government will likely argue that home-grown use does affect commerce, since patients would otherwise have to purchase their marijuana.

I see how this works, create a total ban on marijuana and make possession an arrestable offense and make cultivation a felony. In effect, the government has removed and outlawed a market for any citizen to purchase marijuana. YET they argue a homegrown user does affect commerce because patients would otherwise have to purchase their marijuana? Excuse me while I scream and rotate my head in circles like the Exorcist.

Perhaps the government is suggesting nay demanding that they should have bought marijuana from the black market where they would have greater odds of being robbed, cheated, and possibly arrested for trafficking in Schedule 1 substances.

Is the black market now to be considered legitimate commerce?

Oh and in the link below I think I read that a Marijuana Tax Stamp is considered drug paraphernalia. Perhaps Operation Pipe Dreams forgot to issue arrest warrants for our own government.

I stumbled upon this very informative website over the weekend:

http://www.potbust.com/book.htm

Must read for anyone in trouble with the law over cannabis.

[ Post Comment ]

 
Comment #7 posted by charmed quark on November 17, 2003 at 06:26:11 PT
Will argue that it DOES affect interstate commerce
This will be based on the Wickard v. Filburn (1942) ruling. The Feds had put in price supports for wheat. For the supports to work, farmers had to limit production. There was a fine if you exceeded production. One farmer who was fined argued that he grew the grain to feed his own cattle and that the grain never left the farm. The Supreme Court ruled that he DID affect interstate commerce because he would have bought grain if he didn't grow his own, so the feds had the right to regulate, and fine, his growing of grain.

A ridiculous ruling that essentially gives the feds control over anything that can be sold. With cannabis, they are also saying they can "regulate" an illegal bleack market.

-Pete

[ Post Comment ]

 
Comment #6 posted by The GCW on November 17, 2003 at 05:25:23 PT
soldiers... now in a paper with published LTE's.
http://www.mapinc.org/drugnews/v03/n1783/a09.html?397

DEPLOYED SOLDIERS USED DRUGS

34 Troops Who Tested Positive Were Sent Overseas Anyway

Pubdate: Sun, 16 Nov 2003 Source: Dallas Morning News (TX)

DES MOINES, Iowa

[ Post Comment ]

 
Comment #5 posted by Jose Melendez on November 17, 2003 at 04:17:55 PT
Soldiers, guns and money . . . I mean drugs.
from:

http://www.dallasnews.com/sharedcontent/dallas/nation/stories/111603dnnatdrugtest.5580b.html

Deployed soldiers used drugs

34 troops who tested positive were sent overseas anyway

07:55 PM CST on Saturday, November 15, 2003

Associated Press

DES MOINES, Iowa – Twenty-one Iowa National Guard troops who tested positive for drug use on the eve of their deployment were sent overseas anyway, despite the Army's "zero tolerance" policy. Now the Army must decide how to deal with them when they return.

Officials at Fort McCoy, Wis., which serves as a multistate jumping-off point for Reserve and Guard troops, said about 13 soldiers from other states who tested positive for drugs were also sent to Iraq.

Fort McCoy officials said some of the soldiers apparently used the drugs with the intention of getting caught and being sent home.

"On a certain level, it would be perverse to throw people out because of their misconduct, when other people who did not engage in that misconduct are having to put their lives on the line," said Eugene Fidell, a military law expert with the National Institute of Military Justice.

Others who tested positive were deemed by medical officials to be infrequent users who posed no risk to themselves or their fellow soldiers in the field.

"A positive on their drug test is not going to keep them here, unless there's a dependency issue," said Linda Fournier, a Fort McCoy spokeswoman. "These units have to have so many people to go overseas."

Spokesmen for the Army and the Department of Defense told The Des Moines Register this week that they were unaware of the problem.

The prospect of punishing troops who return after months of military service has lawyers at Army bases pacing the hallways. Under current policy, soldiers with three or more years of service often are discharged for positive drug tests. Younger soldiers sometimes opt for rehabilitation at the discretion of their commanders.

"The official policy is you don't have a whole lot of latitude," said Mark O'Hara, a 31-year Coast Guard veteran and spokesman for the Judge Advocates Association in Washington, D.C.

"Maybe it's going to be tough if the guy comes back a hero,"

(snipped)

[ Post Comment ]

 
Comment #4 posted by Jose Melendez on November 17, 2003 at 03:05:28 PT
commerce clause
http://www.osburndefensefund.com/pages/pleadings.shtml

[ Post Comment ]
 
Comment #3 posted by Petard on November 16, 2003 at 20:55:26 PT
Continuing the circular thinking

"Nevertheless, the government will likely argue that home-grown use does affect commerce, since patients would otherwise have to purchase their marijuana."

Which would also mean that people growing their own, and not purchasing illegal Black Market MJ, would then have cash available to purchase legal, officially sanctioned, goods and services. These growers could even spend the money saved by growing their own on some of those legal machine gun kits to protect their kids from the Goose Step PD while the kids are in school. Those home growers could even "ask their doctor" for those advertised recreational drugs synthesized by pharma americana.

I'd rather be a farmer than a pharma.



[ Post Comment ]

 
Comment #2 posted by CorvallisEric on November 16, 2003 at 20:42:54 PT
Machine guns and marijuana
Nevertheless, the government will likely argue that home-grown use does affect commerce, since patients would otherwise have to purchase their marijuana.

Before I saw Virgil's comment, I already had the same quote in the cut-and-paste buffer, and similar thoughts in my mind. Of course, it's just the author's opinion, but it's truly bizarre reasoning. On what possible grounds could the machine gun builder not be subject to the same reasoning?

[ Post Comment ]

 
Comment #1 posted by Virgil on November 16, 2003 at 20:13:46 PT
It is the central issue
Nevertheless, the government will likely argue that home-grown use does affect commerce, since patients would otherwise have to purchase their marijuana.

When I read about Buddhism there was the thought that even the movement of a grain of sand on the beach has some effect on everything. Here we have some upside down thinking again. No, it may not be Interstate commerse, but it could have been. It is stupidity from Fantasyland that makes everything interstate commerce because you could have had a V-8.



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