*Medical Marijuana returns to the…

Medical Marijuana returns to the 9th Circuit
“Lawyers Want Court To Consider Medical Marijuana: Four Clubs Say Pot Consitutional”
Oral arguments were heard yesterday morning by the 9th U.S. Circuit Court of Appeals panel in a combined series of cases which challenges the constitutional right of the federal government to interfere in medical marijuana cases.

Santa Clara University professor Gerald Uelmen urged a panel of three judges to find that “Americans have a fundamental constitutional right to relieve their pain.”

Back in May, 2001, the Supreme Court ruled 8-0 (United States v. Oakland Cannabis Buyers’ Cooperative, No.æ 00-151) that medical necessity is not an allowable defense in federal marijuana cases, due to the specific language used in the Controlled Substances Act. This was a narrowly tailored ruling, which left the door open to challenges on other grounds.
The Oakland Cannabis Buyers’ Cooperative has now joined with the Marin Alliance for Medical Marijuana, the Ukiah Cannabis Buyer’s club, and Wo/Men’s Alliance for Medical Marijuana to expand the argument in the hopes of working back up to the Supreme Court.
Some of the court documents are available here. In brief, this case deals with several points:

• Commerce Clause issues
• The groups’ activities are wholly intrastate and the government has not shown justification for using the commerce clause for intrastate activity under the necessary and proper clause.
• Some of the activities are non-economic and so cannot be prohibited under either clause
• The federal government’s actions encroach upon the sovereign powers of the state of California
• Patients’ 5th and 9th amendment rights are violated
• The right to bodily integrity, to ameliorate pain, and to prolong life
• Physician-patient relationship rights
• Government has failed to offer any legitimate, much less compelling justification for infringement on these rights

There are also some technical issues involved.
Just as the Truth in Trials Act which will be considered in Congress is the best hope for medical marijuana from the legislative branch, this combined case seems to be the best hope for judicial relief. It’s a tough battle, and the Supreme Court may be wary of dealing with this case (if it gets there) due to the fact that commerce clause and state sovereignty issues are potentially a problem in much of the federal government’s activities, and the court may not wish to open that can of worms.
I’ll let you know about the progress of this case as it develops.