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Belmont Law Review

Authors

Luke C. Waters

Abstract

Medical marijuana law and policy is at a crossroads in America. On the one hand, it appears the field has achieved a level of legitimacy it so desperately sought, as more than 30 states, territories, and districts have enacted comprehensive medical marijuana programs in the past two decades. In spite of these gains, medical marijuana is often still characterized as little more than a joke or an excuse to lend drug abusers an unearned air of legitimacy. Standing in stark contrast to medical marijuana, the right to bear arms, and firearms by virtue of the association, is afforded rarified status as one of the most cherished and protected rights afforded to Americans. Part I begins by describing comprehensive medical marijuana laws and policies as a basis for the discussion to follow, before moving on to look at marijuana treatment at the federal level. Part II gives a brief overview of Second Amendment and Gun Control Act jurisprudence, which has changed and expanded drastically since 2008. Part III attempts to bring together each of these loose ends, beginning with an examination of the Ninth Circuit’s decision in Wilson v. Lynch. This Article argues that the Ninth Circuit made three critical errors in reaching an inappropriate and unconstitutional conclusion under the two-step test. First, it held that qualified patients suffer only a limited temporal limitation under the qualification imposed by the Gun Control Act because they may give up their state marijuana registration and thereafter become eligible to again possess a firearm. Second, the court found that marijuana users, including qualified patients, are more violent than the general population solely on the basis of conclusions arrived at by another federal circuit court, which were based both upon non-longitudinal government surveys and gross misreadings of the conclusions and analyses of the studies reviewed. Third, the Ninth Circuit found that even if it was visiting constitutional violations upon qualified patients, precedent allows for such overreaches against a minority of individuals. In addition to these incorrect conclusions, such arguments should have been ruled moot as this Article further argues that the Rohrabacher-Farr Amendment blocks the DOJ and any of its subsidiary agencies from enforcing the CSA or Gun Control Act against qualified patients as such actions impede the implementation of medical marijuana programs.

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