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In a ruling with medical pot implications, the 9th U.S. Circuit Court of Appeals has ruled that the federal government cannot prosecute an Arizona man who assembled and kept a machine gun at his home but never bought or sold it. United States v. Stewart, 03 C.D.O.S. 9805, is the latest 9th Circuit case applying the Supreme Court’s Commerce Clause rulings. In continuing to push that jurisprudence in bold new directions, the court may be a step closer to handing the government a loss in another significant area — the Justice Department’s crackdown on California’s medical marijuana laws. “Every word in it is magnificent,” declared Boston University constitutional law professor Randy Barnett — who argued one of two pending medical marijuana cases at the 9th Circuit — after reading Thursday’s decision. Robert Stewart Jr. was investigated by the Bureau of Alcohol, Tobacco and Firearms for selling .50-caliber rifle kits through the mail. But the kits were delivered incomplete — buyers had to do some machining to turn them into an illegal weapon. When agents raided his home they found numerous guns, including the machine gun in question. The government decided to drop the rifle kit case and instead indicted Stewart for possession of a machine gun. But Stewart had assembled the machine gun himself, using parts from a variety of sources. And there was no evidence that he intended to sell the gun. The government argued that because parts of the gun were once in commerce, the Commerce Clause justified the conviction. However, in United States v. McCoy, 323 F.3d 1114, the 9th Circuit recently struck a child pornography conviction, saying the fact that the camera and film had once been in commerce wasn’t enough — the picture itself must have commercial implications. Judge Alex Kozinski agreed with the logic of McCoy. “At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless,” Kozinski wrote. He was joined by Judge Thomas G. Nelson in the Thursday ruling. Visiting U.S. Court of International Trade Judge Jane Restani dissented. The implication for the medical marijuana cases is clear. In one pending case, medical marijuana patient Angel Raich sued to prevent the government from taking away her marijuana. Raich says she grows it at home — it is neither bought nor sold, and never enters into commerce. “This case reinforces every argument that we’ve made in both the [Oakland Cannabis Buyers Club] and Raich cases, which present as applied challenges to the Controlled Substances Act,” said Barnett, Raich’s lawyer. The OCBC case is also pending at the 9th Circuit. Although the Supreme Court has unanimously reversed the 9th Circuit on whether defendants could argue a “medical necessity” defense, the constitutional issues have not been settled. However, the 9th Circuit — following the Supreme Court’s marquee Commerce Clause decisions in Lopez and Morrison — has reaffirmed that marijuana can be regulated by the federal government. But the foundation for those decisions may be eroding. In a different case over whether doctors can recommend marijuana to their patients, Kozinski has stated, “Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce.” Nevertheless, the government will likely argue that home-grown use does affect commerce, since patients would otherwise have to purchase their marijuana. Lawyers for patients in the two pending cases — Barnett, Santa Clara University law professor Gerald Uelmen and Robert Raich, husband of Angel Raich — said they will call Stewart to the attention of the 9th Circuit panels considering the appeals. The case also creates a conflict with other circuits, increasing the likelihood that the Supreme Court will weigh in. But all three found it remarkable that the so-called liberal 9th Circuit is the one court unafraid to apply the conservative Supreme Court’s Commerce Clause jurisprudence. “The 9th Circuit, thus far, is the court of appeals that is taking most seriously the Supreme Court’s Commerce Clause jurisprudence,” Barnett said. Raich agreed. “It’s a rather delicious irony.”

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