Gordo Scientific x Fogz Glass Mini Pocket RigAs you’ve learned, the Supreme Court slowly murdered states’ rights over the course of 181 years.  In 2005, the Supreme Court finally pulled the trigger and put to rest any doubts about the federal government’s power under the Commerce Clause.  How the Department of Justice came to ban not only bongs made and used at home but also cannabis is all right here. The seminal case of the legality of growing and using marijuana for strictly personal use as sanctioned under state law is Gonzales v. Raich, 454 U.S. 1 (2005). In this case, the Supreme Court pulled a Wrightwood – Wickard combo move that trampled both states’ rights and individuals’ rights in one foul swoop. If you haven’t read about Wrightwood or Wickard yet, jump back to Part 2 and Part 3.

In August of 2002, the Drug Enforcement Administration, operating under the premise of enforcing the Controlled Substances Act, raided the properties of a number of medical marijuana users and caregivers operating legally in California under Compassionate Care Use Act.  A few of these individuals brought suit against the government in a lawsuit later known as Gonzales v. Raich claiming that the Controlled Substances Act violated the Commerce Clause, the Due Process Clause, the Sixth Amendment, the Ninth Amendment, the Tenth Amendment and the doctrine of medical necessity. States, interest groups, organizations, scholars and Congressmen alike filed amicus briefs in support of or against Raich.  Most notably, three attorney generals of staunchly conservative anti-drug states, Alabama, Mississippi and Louisiana, filed briefs in support of Raich as a matter of states’ rights.

A 6 to 3 majority decided the case in favor of the federal government by citing precedents created by a previous Supreme Court that had molded itself to the will of President Roosevelt and by distinguishing the case from its most recent decisions in Lopez and Morrison. The Justices immediately zoned in on the parallels between Gonzalez and Wickard to assert Congress’ power to regulate how an individual chooses to produce items on his or her own land for personal consumption under the Commerce Clause.  The problem with this argument and assertion was whether or not the production and use of substances illegal under federal law and their trade on the black market bore substantial effects on interstate commerce as opposed to undesirable activities over which the government had not power to legislate as in the case of Lopez and Morrison.   While I’m not an economist or legal scholar, the majority of those individuals out there agree that the Supreme Court had overextended the use of the Commerce Clause to levels of absurdity.

Now that marijuana is legal for medical use in over 20 states and is currently legal in Colorado and Washington for recreational use, cities and states are now fighting back against the Department of Justice in the court room to prevent further raids of their local dispensaries.  In order to win this battle, the states will have to convince the conservative majority in the Supreme Court to overturn Gonzalez v. Raich and number of other precedents in order to win. If this moves fails, and if I were asked to guess, I would say that in all likelihood it will fail because the Supreme Court hates to admit that it’s wrong and because the Justices that previously triumphed states’ rights may not do so this time because they are ideologically against drugs, the only way to overcome this would be to amend the Controlled Substances Act.  Given that the majority of states are now supporting marijuana, I would fine such an amendment possible but not within the near future. Fingers crossed everyone!!!!