While the media of late tends to focus on the new crop of states resisting DC with legislation on firearms and health care, they almost always miss, or ignore, what I consider to be some of the greatest and most effective state resistance to federal power – marijuana activism.

According to our friends at NORML, there are now 13 states who are openly resisting federal laws on medical marijuana. And now my home state of California is on the verge of taking it to the next level – full legalization.

According to a report in the SF Chronicle yesterday:

Two prominent East Bay marijuana advocates got clearance from the state today to try to put a pot-legalization initiative on the November 2010 California ballot.

This isn’t your run-of-the-mill “medical marijuana” bill – that’s already legal in CA. If approved by voters, the bill would:

allow anyone over 21 to possess or grow marijuana for personal use. It would allow each local government to decide whether to tax and regulate marijuana sales.

Any honest person reading the Constitution through the intent and understanding of the founders would recognize that the federal government has no delegated power to be involved in the marijuana issue, in any way.

Keep in mind, though, that the federal courts (and the DEA), don’t really care what the Constitution has to say about it. They’ve interpreted it in their own way, and have made it quite clear that they don’t recognize state marijuana laws as “valid.”

But, as we say here in California, thanks for your opinion, DC, we’ve got our own.

My home state of California usually interacts with the federal government by genuflecting.  But, on a few issues – very few, that is – they’ve got plenty of backbone.

Most notably, marijuana.

Last week, the California State Senate passed Senate Joint Resolution 14 (SJR14), calling on the federal government to end their “interference in state medical marijuana laws.”  If passed by the Assembly, it will be sent on to Congress and the White House as an official position of the California legislature.

THE INTERSTATE COMMERCE CLAUSE

Under the Constitution of the United States, the federal government is authorized to exercise only those powers which have been delegated to it by the People.   This is affirmed by the ratification of the 10th Amendment, which states, ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The federal government has often taken the position that it can still wage its “war on marijuana” under the “Interstate Commerce Clause” in Article I, Section 8 of the Constitution.  But, some experts see this kind of explanation as quite a stretch.

Most importantly, the Interstate Commerce Clause, as understood by the founders, was meant to empower the federal government to regulate trade among the states.  One of the chief concerns this addressed was preventing States from imposing restrictive taxes on goods coming from other states.

The Founders, however, made it quite clear that this would not authorize the government to take over fields like agriculture.  Clearly, this hasn’t stopped today’s politicians and judges from turning that original meaning nearly upside down.

FIREARMS TOO

While the stand off on state marijuana laws has been going on for over a decade, firearms is a new front in the Commerce Clause debate.

This year, both Montana and Tennesse passed a “Firearms Freedom Act” taking the position that guns manufactured in state, sold in state, and kept in state – would not be subject to federal laws and regulations under the Commerce Clause.

So far, the only response has been a sternly-written letter from the assistant director of the ATF stating his position that federal law supercedes state law – and the federal government intends to continue its current regulations.

A coalition of the Montana Sports Shooting Association and the 2nd Amendment Foundation is planning a court challenge “to the federal government’s insistence it will regulate those items.”

LEAVE IT TO THE STATES

According to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), this is an issue that should be left up to the states.  He said, “The federal raids on medicinal marijuana providers have dissipated since Eric Holder was sworn in.  That said, the DEA has continued to be involved in a handful of raids in California — each time in cases that appeared to have been solely state matters (e.g., providers were alleged to be involved in state tax disputes or in violation of local ordinances), particularly based on the fact that federal charges were never filed.  If the Obama administration is really serious about leaving this issue solely up to state governments — as it should be — then the federal DEA ought to be leaving the voters of the thirteen states that have enacted medical marijuana policies alone.”

PROMISES MADE, PROMISES BROKEN?

As more states have passed medical marijuana laws, it’s become increasingly difficult and costly for the federal government to enforce its laws.  The Obama Administration has promised to end interference in state medical marijuana programs, but numerous federal raids since January have California lawmakers concerned.

SJR14 Sponsor Senator Mark Leno said that, “Patients and providers in California remain at risk of arrest and prosecution by federal law enforcement and legally established medical marijuana cooperatives continue to be the subjects of federal raids.”

In August, for example, federal agents conducted multiple raids on medical marijuana providers. On August 12, the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service, and local police carried out a paramilitary-style raid on a medical marijuana provider in Los Angeles.

The reason given?  The government claimed that the raided facility had “failed to submit state sales tax revenues.”

Where the Constitution permits federal agencies to enforce state tax code violations, I’ll never know.

A CONSTITUTIONAL REPUBLIC?

Supporters say that the reduction of raids under the Obama administration is a good thing.  But, according to noted Constitutional historian Kevin Gutzman, leaving the fate of such issues to the decision of one sitting president or another is a dangerous precedent.

“Attorney General Holder’s decision to halt the long-standing federal policy of prosecuting medical marijuana distributors is a welcome development,” said Gutzman. “However, so long as the Federal Government does not recognize the states’ Tenth Amendment right to decide the issue of medical marijuana, a return of the bad old days when patients suffering crippling pain were denied this medical treatment is always one election away.”

In other words, any society that rests the fate of its liberty on the “goodness” or “badness” of its leaders is in serious trouble.

“That,” said Gutzman, “is the difference between a democracy and a constitutional republic.”

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Gov. Arnold Schwarzenegger said Tuesday that the time is right to debate legalizing marijuana for recreational use in California.

The governor’s comments were made as support grows nationwide for relaxing pot laws and only days after a poll found that for the first time a majority of California voters back legal marijuana. Also, a San Francisco legislator has proposed regulating and taxing marijuana to bring the state as much as $1.3 billion a year in extra revenue.

Schwarzenegger was cautious when answering a reporter’s question Tuesday about whether the state should regulate and tax the substance, saying it is not time to go that far.

But, he said: “I think it’s time for debate. I think all of those ideas of creating extra revenues – I’m always for an open debate on it.”

The governor said California should look to the experiences of other nations around the world in relaxing laws on marijuana.

Assemblyman Tom Ammiano, D-San Francisco, has introduced a bill to regulate marijuana like alcohol, with people over 21 years old allowed to grow, buy, sell and possess cannabis – all of which are barred by federal law.

California voters in 1996 legalized marijuana for medical use with permission from a physician.

Ammiano said he was pleased the governor is “open-minded” on the issue and added that he was sure the two could “hash it out.”

Under Ammiano’s proposal, the state would impose a $50-an-ounce levy on sales of marijuana, which would boost state revenues by about $1.3 billion a year, according to an analysis by the State Board of Equalization. Betty Yee of San Francisco, who chairs the Board of Equalization, supports the measure.

“This has never just been about money,” said Ammiano, who has long supported reforming marijuana laws. “It’s also about the failure of the war on drugs and implementing a more enlightened policy. I’ve always anticipated that there could be a perfect storm of political will and public support, and obviously the federal policies are leaning more toward states’ rights.”

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