Reading the case law — U.S. v. Lopez (1995)

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Here’s the open­ing para­graph from Unit­ed States v. Lopez, 514 U.S. 549, 551 (1995):

In the Gun-Free School Zones Act of 1990, Con­gress made it a fed­er­al offense “for any indi­vid­ual know­ing­ly to pos­sess a firearm at a place that the indi­vid­ual knows, or has rea­son­able cause to believe, is a school zone.” 18 U.S.C. § 922 (q)(1)(A) (1988 ed., Supp. V). The Act nei­ther reg­u­lates a com­mer­cial activ­i­ty nor con­tains a require­ment that the pos­ses­sion be con­nect­ed in any way to inter­state com­merce. We hold that the Act exceeds the author­i­ty of Con­gress “to reg­u­late Com­merce … among the sev­er­al States .…” U.S. Con­st., Art. I, § 8, cl. 3.

This was a case used by Raich in Gon­za­les v. Raich, 545 U.S. 1 (2005), to sup­port a claim that the Inter­state Com­merce Clause did not reach per­son­al, intra-state, and state-autho­rized med­ical use of mar­i­jua­na.

Let’s exam­ine the dif­fer­ences in the Gun-Free School Zones Act (GFSZA) and the Con­trolled Sub­stances Act (CSA).

The GFSZA crim­i­nal­ized the pos­ses­sion of a firearm in a spe­cif­ic set of cir­cum­stances.  The CSA reg­u­lates the pos­ses­sion of sub­stances and only crim­i­nal­izes the unau­tho­rized pos­ses­sion of a con­trolled sub­stance (you can get a pre­scrip­tion and that makes it legal).  So, that is a huge dif­fer­ence.  When Con­gress cre­ates a license to do some­thing that is not oth­er­wise allowed, you have to make an addi­tion­al argu­ment that you were denied a license before you can attack the statute itself.  Anoth­er twist of the CSA is that you can apply to have sub­stances added, removed, or trans­ferred between, the sched­ules.

An addi­tion­al fact of the CSA is that Con­gress specif­i­cal­ly said per­son­al, intra-state pos­ses­sion of con­trolled sub­stances affects inter­state com­merce.  That asser­tion went unchal­lenged for 35 years until Raich chal­lenged it.  And, of course, unless a fun­da­men­tal right is at stake, the court uses a “ratio­nal basis” analy­sis to deter­mine whether Con­gress could have rea­son­ably assumed per­son­al, intra-state pos­ses­sion of con­trolled sub­stances affects inter­state com­merce.

So, the CSA:

  1. Reg­u­lates a com­mer­cial activ­i­ty.
  2. Asso­ciates the activ­i­ty with inter­state com­merce.

That is why NORML’s cur­rent law suit, Marin Alliance v. Hold­er, No. 4:11-cv-05349-SBA (U.S. Dis­trict Court, North­ern Dis­trict of Cal­i­for­nia, Oak­land) is going to fail unless NORML amends the com­plaint to chal­lenge the sched­ule I clas­si­fi­ca­tion of mar­i­jua­na (which is what the U.S. Supreme Court told Raich to do, 545 U.S. at 28 n.37).  I found it inter­est­ing that NORM­L’s year end sum­ma­ry of mar­i­jua­na law reform claims this law­suit was their great­est accom­plish­ment of 2011.  Two fed­er­al judges have already torn it to shreds.

21 U.S.C. § 801 Note Short Title

This title may be cit­ed as the ‘Con­trolled Sub­stances Act’.

§ 801. Con­gres­sion­al find­ings and dec­la­ra­tions: con­trolled sub­stances.

The Con­gress makes the fol­low­ing find­ings and dec­la­ra­tions:

  • (1) Many of the drugs includ­ed with­in this sub­chap­ter have a use­ful and legit­i­mate med­ical pur­pose and are nec­es­sary to main­tain the health and gen­er­al wel­fare of the Amer­i­can peo­ple.
  • (2) The ille­gal impor­ta­tion, man­u­fac­ture, dis­tri­b­u­tion, and pos­ses­sion and improp­er use of con­trolled sub­stances have a sub­stan­tial and detri­men­tal effect on the health and gen­er­al wel­fare of the Amer­i­can peo­ple.
  • (3) A major por­tion of the traf­fic in con­trolled sub­stances flows through inter­state and for­eign com­merce. Inci­dents of the traf­fic which are not an inte­gral part of the inter­state or for­eign flow, such as man­u­fac­ture, local dis­tri­b­u­tion, and pos­ses­sion, nonethe­less have a sub­stan­tial and direct effect upon inter­state com­merce because -
    • ( A ) after man­u­fac­ture, many con­trolled sub­stances are trans­port­ed in inter­state com­merce,
    • ( B ) con­trolled sub­stances dis­trib­uted local­ly usu­al­ly have been trans­port­ed in inter­state com­merce imme­di­ate­ly before their dis­tri­b­u­tion, and
    • ( C ) con­trolled sub­stances pos­sessed com­mon­ly flow through inter­state com­merce imme­di­ate­ly pri­or to such pos­ses­sion.
  • (4) Local dis­tri­b­u­tion and pos­ses­sion of con­trolled sub­stances con­tribute to swelling the inter­state traf­fic in such sub­stances.
  • (5) Con­trolled sub­stances man­u­fac­tured and dis­trib­uted intrastate can­not be dif­fer­en­ti­at­ed from con­trolled sub­stances man­u­fac­tured and dis­trib­uted inter­state. Thus, it is not fea­si­ble to dis­tin­guish, in terms of con­trols, between con­trolled sub­stances man­u­fac­tured and dis­trib­uted inter­state and con­trolled sub­stances man­u­fac­tured and dis­trib­uted intrastate.
  • (6) Fed­er­al con­trol of the intrastate inci­dents of the traf­fic in con­trolled sub­stances is essen­tial to the effec­tive con­trol of the inter­state inci­dents of such traf­fic.
  • (7) The Unit­ed States is a par­ty to the Sin­gle Con­ven­tion on Nar­cot­ic Drugs, 1961, and oth­er inter­na­tion­al con­ven­tions designed to estab­lish effec­tive con­trol over inter­na­tion­al and domes­tic traf­fic in con­trolled sub­stances.