Homemade Guns and Homegrown Pot

Last week the U.S. Court of Appeals for the 9th Circuit continued to distinguish itself as one of the few federal courts making a serious effort to define the limits of Congress's power to regulate interstate commerce. In an opinion written by Alex Kozinski, a three-judge panel overturned a man's conviction for possession of a homemade machine gun. Applying the logic of United States v. Lopez , the 1995 case in which the U.S. Supreme Court overturned a federal law prohibiting possession of a gun in or near a school, the 9th Circuit found that the connection between a homemade machine gun and interstate commerce was too tenuous to justify federal action.

The district court, which upheld the conviction, had argued that while the machine gun never crossed state lines, "the parts, at least, moved in interstate commerce." Noting that the 9th Circuit had rejected such reasoning in a 2003 case involving homemade child pornography (the equipment and materials for which had "moved in interstate commerce"), Kozinski replied:

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. As Lopez reminds us, Congress's power has limits, and we must be mindful of those limits so as not to "'obliterate the distinction between what is national and what is local and create a completely centralized government.'"

Boston University law professor Randy Barnett, who is representing a California woman, Angel Raich, who grew marijuana for her own medical use, hopes the 9th Circuit will take the same view of homegrown cannabis as it did of homemade machine guns. "This case reinforces every argument that we've made in both the Oakland Cannabis Buyers Club and Raich cases," he says.

Another reason for optimism: Last year, when the 9th Circuit ruled that the federal government's attempt to prevent physicians from recommending marijuana to their patients violated the First Amendment, Kozinski noted in a concurring opinion that "medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce….Federal efforts to regulate it considerably blur the distinction between what is national and what is local."

But the 9th Circuit still has to deal with Wickard v. Filburn, the 1942 case in which the U.S. Supreme Court said growing wheat for home consumption implicated interstate commerce because it affected overall demand. A similar rationale could be offered for banning homegrown pot. In the case of marijuana, Congress is trying to eliminate the market entirely, rather than regulate prices. I'm not sure whether that makes the Commerce Clause argument stronger or weaker. Either way, the argument is hard to take seriously.