Angel Raich

Medical Marijuana at the U.S. Federal level.

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Angel Raich

Postby palmspringsbum » Fri Apr 07, 2006 8:38 pm

<span class=postbold>See Also</span>: cannabis infirmary | news | Ange McClary Raich

The San Jose Mercury wrote:Posted on Tue, Mar. 28, 2006

Medical marijuana back in courtroom
LAWYERS: POT KEEPS AILING WOMAN ALIVE

By David Kravets
Associated Press
MercuryNewc.com


PASADENA - A lawyer for an ill California woman whose doctor says marijuana is the only medicine keeping her alive asked an appeals court Monday to prevent federal drug agents from ever arresting her.

The case, focusing on whether the gravely ill have a right to marijuana to keep them alive when legal drugs fail, is likely to reach the U.S. Supreme Court soon. Yet each time the high court has ruled on medical marijuana it has come down against allowing the sick and dying to use the drug to ease their symptoms and possibly prolong life.

The latest legal wrangling once again highlights the tension between the federal government, which declares marijuana an illegal controlled substance with no medical value, and the 11 states allowing medical marijuana for patients with a doctor's recommendation.

``Medical cannabis is necessary for the preservation of Angel Raich's life,'' said Randy Barnett, the Oakland woman's lawyer. He later told the three-judge panel of the 9th U.S. Circuit Court of Appeals: ``If she obeys the law, she will die.''

Raich, a 40-year-old mother of two, suffers from scoliosis, a brain tumor, chronic nausea and other ailments. On her doctor's advice, she uses marijuana every couple of hours to ease her pain and bolster a non-existent appetite.

Last year, the Supreme Court came down against Raich, in what was the court's second ruling against medical marijuana since 2001. Because Congress decided marijuana was illegal under the 1970 Controlled Substances Act, the justices ruled, medical marijuana users and their suppliers could be prosecuted for breaching federal drug laws, even if they lived in a state where medical marijuana was legal.

Because of that ruling, the legal issue has narrowed to the so-called right to life theory: that marijuana should be allowed if it is the only viable option to keep a patient alive.

Assistant U.S. Attorney Mark Quinlivan could not guarantee to the court that Raich or other seriously ill patients using medical marijuana would not be prosecuted. Over the years, the government has raided dozens of medical marijuana dispensaries, mostly in California.

Quinlivan told the judges that nobody has a right to use marijuana, and said a ruling in Raich's favor would open the floodgates to ``people who want to use other substances'' that are not approved for medical purposes.

Judge Harry Pregerson asked Quinlivan whether it was OK for Raich to die or succumb to ``unbearable suffering.''

``So go ahead and die. That would be all right?'' he asked.

``Congress has made that value judgment,'' Quinlivan responded.

Another judge, Arlen Beam, suggested that Raich could only make a defense that marijuana is medically necessary if she is prosecuted. He said she would probably prevail by stating she was only breaking the law to stay alive.

``It seems to me, if this was a criminal prosecution,'' Beam told the government's lawyer, ``you would lose your argument.''

After the hearing, Raich said, ``I think I'm going to win.''

During the 70-minute hearing, Barnett likened Raich's plight to women being allowed to have an abortion even after the fetus has become viable, if the abortion was necessary to save the woman's life.

``This is a new argument which they have come up with,'' Quinlivan told the judges.

Pregerson responded, ``There was nothing wrong with that.'' Pregerson added: ``You've got to go back to life, liberty and the pursuit of happiness. That takes care of it all.''

Voters in 1996 made California the first state to authorize patients to use marijuana with a doctor's recommendation. Ten other states have since followed suit.

In 2001, the Supreme Court ruled that Raich's supplier, the Oakland Cannabis Buyer's Cooperative, could not lawfully dispense marijuana despite California voters approving its medical use.

The court did not indicate when it would rule on a case that both sides expect would be appealed to the Supreme Court.

Last edited by palmspringsbum on Sat Aug 26, 2006 7:21 pm, edited 1 time in total.
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Postby palmspringsbum » Fri Jun 30, 2006 4:49 pm

Appeals Court: Congress can ban homemade machine guns

By Julia Cheever, Bay City News Service
June 30, 2006

<b>SAN FRANCISCO (BCN) - </b>An Oakland medical marijuana case that went to the U.S. Supreme Court caused a federal appeals court in San Francisco to rule today that Congress has the power to regulate homemade machine guns.

The 9th U.S. Circuit Court of Appeals upheld the federal conviction of Robert Stewart of Arizona for illegal possession of five machine guns.

Stewart, who sold parts kits for rifles, made the guns himself.

He argued in his appeal that he wasn't subject to the federal gun law because his homemade guns didn't enter into interstate commerce.

The gun law is based on Congress' constitutional power to regulate interstate commerce.

The appeals court initially agreed with Stewart's argument in an earlier ruling in 2003.

But the U.S. Supreme Court last year, after issuing a decision in the case of Oakland medical marijuana patient Angel Raich, ordered the 9th Circuit to reconsider Stewart's appeal in light of the high court's ruling.

In the Raich case, the high court said that Congress has the power to ban medical marijuana use even if the plant is grown locally and its use is allowed under state law.

The Supreme Court said last year that homegrown marijuana could still have a substantial impact on interstate commerce.

In today's ruling, 9th Circuit Judge Alex Kozinski said homemade machine guns were similar to homegrown marijuana for purposes of regulation.

Kozinski wrote, "The market for machine guns is established and lucrative, like the market for marijuana."

The court said homemade guns &quot;can enter the interstate market and affect supply and demand.&quot;

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Postby palmspringsbum » Sun Jan 20, 2008 5:33 pm

The Observer wrote:
The incredible shrinking Constitution

The Observer

1/16/2008 - Perhaps the most significant political event in the recent decade was a little noticed Supreme Court case, Gonzales v. Raich, 545 U.S. 1 (2005), that ratified the Depression-era rewriting of the U.S. Constitution. In 1996, California voters passed Proposition 215, which permitted seriously ill patients to use medical marijuana when they had a physician’s recommendation.

At the federal level, however, marijuana was illegal under the 1970 Controlled Substances Act (CSA). The CSA made it a Schedule I drug, which resulted in a ban on its manufacture, distribution, and possession. Congress did so on the basis that marijuana had a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.

As a side note, the Congressional finding conflicts with that of a number of respected medical groups, such as the British Medical Association, which have backed the medical use of marijuana.

This case involved Angel Raich and Diane Monson of California who suffered from a variety of painful and debilitating medical conditions and used medical marijuana to alleviate their suffering. The federal government conceded that both used the drug as medication for several years, did so pursuant to their doctors’ recommendations, and relied on it to function on a daily basis. Raich’s physician claimed that if she stopped using marijuana, she would suffer excruciating pain and might die. Their use was legal under California law. Raich and Monson sued to stop the federal government interfering with their use of it.

At issue was whether under the Constitution the federal government had the power to prohibit the intrastate (within one state) production and use of medical marijuana. To see the Constitutional issue, consider the structure of the Constitution. The Constitution limits federal powers to those listed in Article I Section 8 of the Constitution. The principal author of the Constitution, James Madison, acknowledged this when he stated that the powers delegated to the federal government are few and clearly defined (Federalist Papers 45). The only section of Section 8 that even comes close to authorizing federal power over medical marijuana is the Commerce Clause. This clause states that “The Congress shall have power … To regulate commerce with foreign nations, and among the several States … .” This structure is bolstered by the Tenth Amendment, which requires that the states and the people have all powers not delegated to the federal government. Under the Constitution, then, the federal government’s powers are few, specifically laid out, and in this context limited to interstate commerce.

The problem is that this case involved purely intrastate and non-commercial activity. The marijuana was produced and consumed solely within California and was not bought, sold, or traded. As a result, federal control over it conflicts with the language, structure, and original intent of the Constitution. Such activity does not meet the definition of “commerce,” which was consistently used during the Constitutional Convention, Federalist Papers, and ratification debates to mean “trade or exchange.” As a result, it would not have fallen under the powers listed in Article I Section 8. Also, Justice Thomas (the Court’s best) noted that the framers would not have considered this an exchange and would have found it obvious that Congress lacked the power to ban or regulate it.

Justice Stevens writing for the liberal block (sadly joined by Justice Scalia) relied on three sketchy arguments to explain how the federal government had power over this isolated intrastate activity. First, Stevens argued that the production and consumption of medical marijuana in the aggregate substantially affects interstate commerce. It’s worth noting that they had no evidence for this claim. Justice Thomas then demolished the argument. He noted that almost any aggregate activity substantially affects interstate commerce. For example, on this reasoning the federal government could regulate tooth brushing, unhealthy eating, and lack of exercise because in the aggregate they substantially affect interstate commerce.

Second, Stevens argued that the regulation of this activity is essential to the regulation of interstate activity because of concern over whether some of the marijuana produced for medical purposes might be diverted to non-medical uses. Thomas pointed out that in the past, the Court had never allowed the federal government to regulate non-economic activity as a way to control interstate commerce. He noted that if you count this activity as commerce, because it involves the production, distribution, and consumption of commodities, then it is hard why this wouldn’t also be true for quilting bees, clothes drives, and potluck suppers. In addition, he noted that this grant of power would result in there being no powers reserved to the states rather than the federal government. This brutalizes the Constitution.

Third, Stevens argued that the regulation of the intrastate was incidental to the broader regulation of interstate marijuana trade. This is beside the point because whether governmental intrusion is a goal or incidental, it is unconstitutional if it aims at a distinct activity that is not within the federal government’s authority.

This issue matters because this case in effect puts a stake into the heart of the Constitution. The whole thrust of the Constitution is to limit the size and scope of the federal government. The Articles limits the powers of the federal government and the Bill of Rights (first ten Amendments) further protect against federal power grabs by emphasizing particular rights. Without a limited scope it makes no sense to list the federal government’s powers in Article I Section 8. Nor would the Tenth Amendment make sense because there would be few, if any, powers not delegated to the federal government. This case is in sharp conflict with the original intent of the persons who wrote and ratified the Constitution. They envisioned a federal government with clearly defined and sharply limited powers.

It is also worth noting that these issues have nothing to do with marijuana. Rather, it has to do with whether this country is going to be bound by the Constitution or not. With this decision, the Court decided that it would not and the Constitution became yet another casualty of the drug war.



Stephen Kershnar is a SUNY Fredonia professor. Send comments to editorial@observertoday.com
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