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Tuesday, November 15, 2016

Marijuana, Federalism, and Guns

The Wall Street Journal reports:

28 states and Washington D.C., allow marijuana use in some form, including eight that allow recreational use. Yet federal law still holds that anyone who uses marijuana, even medicinally, is doing so illegally and can’t buy a gun. 
That is upsetting advocates for both gun owners and pot smokers, groups that don’t always find themselves on the same side of the cultural divide. 
“This idea that you somehow waive your Second Amendment rights if you smoke marijuana” is wrong, said Keith Stroup, founder of NORML, which advocates marijuana legalization. “In particular, if you are using marijuana as a medicine, the idea that you have to choose between your health and the Second Amendment is offensive.” 
“The Gun Control Act prohibitions are governed by the Controlled Substances Act, and marijuana remains an illegal, controlled substance under federal law,” said Justice Department spokesman Peter Carr.
This issue sets up the possibility of a very strange coalition of marijuana and gun advocates, and leads to Republican senators like Lisa Murkowski making the following statements:
Ms. Murkowski wrote Attorney General Loretta Lynch in March urging her to reconsider the policy. “In my judgment, the disqualification of an entire class of marijuana users acting consistent with state law from possessing any firearm merits a review of federal legal policy,” she wrote.
The article notes that the Ninth Circuit has held that banning those holding medicinal marijuana cards from purchasing firearms does not violate the Amendment. That case is Wilson v. Lynch, and you can find the full opinion here.

The Wall Street Journal's article highlights one of the numerous tensions between state and federal law regulating marijuana -- tensions that will doubtless gain more attention and prompt more dissent as more states continue to legalize recreational and medical marijuana. Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam Kamin explore the federalism conflicts that marijuana legalization creates in this notable article in the UCLA Law Review. Here is the (somewhat lengthy) abstract:

The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. The ongoing clash of federal and state marijuana laws forces us to consider the preemptive power of federal drug laws and the appropriate roles for state and federal governments in setting drug policy. This conflict also creates debilitating instability and uncertainty on the ground in those states moving from prohibition to regulation of marijuana. 
While the courts have yet to establish the precise contours of federal preemption doctrine in this context, we argue that the preemptive reach of the federal Controlled Substances Act (CSA) is relatively modest. Recognition of this legal reality likely played a significant role in the recent Department of Justice (DOJ) decision not to challenge the Colorado and Washington State ballot initiatives legalizing and regulating marijuana for adult use. Yet even if the federal government honors its commitment to not enforce federal drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound. Banks, attorneys, insurance companies, potential investors, and others—justifiably concerned about violating federal law—are reluctant to provide investment capital, legal advice, or other basic professional services necessary for marijuana businesses to function. Those using marijuana in compliance with state law still risk losing their jobs, parental rights, and many government benefits if their marijuana use is discovered. 
We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states: The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria—criteria along lines that the DOJ has already set forth—to opt out of the CSA provisions relating to marijuana. State law satisfying these federal guidelines would exclusively govern marijuana activities within those states opting out of the CSA but nothing would change in those states content with the CSA’s terms. This proposed solution embodies the best of federalism by empowering state experimentation with marijuana regulation while maintaining a significant federal role in minimizing the impact of those experiments on states wishing to proceed under the federal marijuana prohibition.
It will be interesting to see if any other conservative politicians join Murkowski in protesting the application of federal gun law to marijuana use legalized by states. Conservative politicians who take Murkowski's critical stance walk a fine line between appearing too restrictive towards gun rights or too favorable towards marijuana users.

I tentatively predict that Republicans in the House of Representatives will be less likely to criticize federal gun laws, even if they are from a state that legalized recreational or medicinal marijuana. This is because their particular constituency may not have favored the policy ultimately adopted by the state, while senators who represent a broader constituency may be more likely to favor policies adopted by their states as a whole. Let's keep an eye on Representatives Kevin McCarthy and David Valadao (both R-CA) to see if they take stances similar to Murkowski. (I'm just naming the members of Congress I was able to locate after doing a Google search for which members of Congress represented any portion of Bakersfield, California).

While waiting for Representatives McCarthy, Valadao, and others to take a stance, I recommend reading the Chemerinsky, et al. article in full.

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