Can Colorado's Limit on Pot Purchases by Nonresidents Survive Constitutional Challenges?


Jacob Sullum

The marijuana regulation law that Colorado Gov. John Hickenlooper signed last month includes a quarter-ounce limit on pot purchases by visitors from other states. Colorado residents, by contrast, may buy up to an ounce at a time. As I have mentioned before, making the purchase limit hinge on residency seems inconsistent with Amendment 64, the marijuana legalization initiative that is now part of Colorado's constitution. The quarter-ounce rule may also be vulnerable to challenge under the U.S. Constitution, since it discriminates against residents of other states.

Amendment 64 decriminalizes purchase and possession of up to an ounce by anyone who is 21 or older, without regard to residency. The fact that the initiative does not distinguish between Coloradans and residents of other states was one reason the legislature decided to let visitors buy marijuana, despite fears about the possible negative consequences of "pot tourism." Furthermore, Amendment 64 specifies that the state "shall not require a consumer to provide a retail marijuana store with personal information other than government-issued identification to determine the consumer's age, and retail marijuana stores shall not be required to acquire and record information about consumers other than information typically acquired in a financial transaction conducted at a retail liquor store." Yet Colorado's new marijuana law makes it a Class 2 misdemeanor, punishable by up to a year in jail and a $500 fine, to "sell a more than a quarter of an ounce…during a single transaction to a person who does not have a valid identification card showing that the person is a resident of the state of Colorado." That rule seems tantamount to demanding that stores acquire information about the locations of customers' homes, a requirement that Amendment 64 does not allow. Granted, the "government-issued identification" used by customers as proof of age will typically be a driver's license that reveals where they live. But under Amendment 64 customers could use a passport instead. The new law compels them to present IDs that include their addresses if they want to buy more than a quarter of an ounce. That requirement raises the possibility of a challenge under the state constitution.

In a new paper, Samford University law professor Brannon Denning notes that Colorado's residency-based purchase limit could be challenged under the U.S. Constitution as well. Article IV, Section 2, for example, says "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." On its face, that guarantee seems inconsistent with Colorado's discrimination against nonresidents. But the Supreme Court has said the Privileges and Immunities Clause applies only to "fundamental rights," and Denning is skeptical that recreational marijuana use would qualify. (The Supreme Court has said another form of recreation, elk hunting, does not.) Medical marijuana use might carry more weight, Denning says, but Colorado still could defend its restriction by arguing that it bears a substantial relationship to a legitimate, nonprotectionist goal: avoiding conflict with other states and the federal government by making it harder to divert marijuana from Colorado into the interstate black market. The idea is that forcing nonresidents to buy pot a quarter ounce at a time instead of an ounce at a time will make it four times as difficult to amass quantities suitable for profitable smuggling.

Denning thinks a stronger challenge to the quarter-ounce rule could be made under the dormant Commerce Clause doctrine, which frowns upon laws that burden interstate commerce, especially when they explicitly discriminate against residents of other states. He notes that "nonresident pot tourists would be traveling in interstate commerce to purchase marijuana legally in Colorado." Furthermore, in Gonzales v. Raich, the 2005 decision upholding enforcement of the federal marijuana ban in states that allow medical use of the plant, the Court "concluded that the production and consumption of locally produced, noncommercial, medical marijuana…substantially affected the interstate marijuana market." If so, "state restrictions on the sale of marijuana to nonresidents…even though occurring within Colorado, would likely substantially affect interstate commerce," thereby triggering scrutiny under the dormant Commerce Clause doctrine.

Still, Denning says, the Court "has acknowledged that states can restrict trade for reasons other than securing commercial advantage for residents or for punishing those who reside elsewhere." Since Colorado's purchase limit is "intended to avoid interstate friction, not exacerbate it," he argues, "courts should grant the state some experimental leeway in the means it chooses to enforce its legitimate interests." He adds that Congress could explicitly authorize such experimentation, just as it gives states extra leeway in setting their own alcohol policies.

[Thanks to Glenn Reynolds for the link to Denning's paper.]

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  1. “Denning thinks a stronger challenge to the quarter-ounce rule could be made under the dormant Commerce Clause doctrine, which frowns upon laws that burden interstate commerce, especially when they explicitly discriminate against residents of other states.”

    What sweet irony! Are you telling me that the Commerce Clause is a double-edged sword?


  2. Some of my friends will have to hit multiple stores, and re-enter Colorado as much as possible, to keep up with their consumption … hell, even peeps I know who live in Colorado would burn through an ounce pretty quick. Chronics obviously did not craft this part of the legislation.

    1. How quick can someone possibly burn through an ounce? I feel like if you’re smoking more than a dozen standard-sized joints a day, you’re just showing off.

  3. OT:…..vdKREKZMs#!

    I love Microsoft. I really do. But their plans for the X1 are just retarded.

    1. It’s not the plans for the X1 that are retarded. The X1 is retarded. As a happy 360 owner I don’t even know where to begin (even if I’m not sold on the PS4).

    2. Plus some really promising looking games are coming out only on the PS4. If I have to buy one I’m going to be pissed.

      The Last of Us

      The Division (and this is not a cutscene, this is actual gameplay; amazing)

      1. That was frigging awesome. Either way, I’ve always been firmly and loyally in the Xbox camp (and Microsoft generally), but even my resolve is beginning to suffer from these revelations.

        Checking in with Microsoft online every 24 fucking hours? Seriously? Fuck you, Microsoft.

        1. I wonder whether jailbreaking consoles will be considered a violation of the DMCA.

        2. Are you me? The checking in thing wasn’t even the worst of it. The hardware is not as good and the games lineup is consists entirely of franchises that are getting real long in the tooth. Master Chief in a poncho….BARF.

          1. It’s still a while away, but thus far, Sony’s impressed, and Microsoft hasn’t.

        1. “Yes, young Skywalker. Let the console hate flow through you.”

      2. And here’s another promising game to watch:

        Looks fun as sin.

        1. Looks pretty cool, but not for me. I hate stealth games. I play video games mostly to kill and loot, not sneak around. I remember trying the demo for Thief: The Dark Project years ago and uninstalling it about 30 minutes after trying it because I hated the stealth gameplay.

          1. I really enjoyed a few of the Clancy titles (Rogue Spear and Ghost Recon come to mind) before the writers lobotomized the franchise into Jack Bauer bullshit melodrama. I enjoyed the quiet insertion/bloody massacre style of stealth gameplay. I never got around to trying Splinter Cell.

      3. Thank you Epi you have made my day. Not usually a TPS fan but damn that awesome.

      4. Real time tech demo on PS4:

        the PS4 is also more powerful:
        memory: 68.3 GB/s vs 176.0 GB/s
        GPU cores: 768 vs 1152

        and is $100 cheaper than XboxOne

    3. Are we not going to roll that the chosen hashtag for this was #xbone?

      It would be criminal to call this anything else than the ex-bone.

      1. At this rate, I won’t be needing to call it anything at all. I’ll have a PS4 parked underneath my TV, most likely.

        $100 says Microsoft refuses to reverse the policy despite massive discontent within its fanbase.

        1. I’m not sold on the PS4 I’ll try PC gaming first and probably then get a PS4.

          Microsoft has not only lost this console war before the first sale, they have destroyed their brand and might be out of consoles forever. Between this, Windows 8, the Windows phone, I wonder if Balmer just hates money.

          1. I don’t hate Windows 8, and once they bring back the start button with 8.1 it’ll have fixed my major annoyance with it. I like what Microsoft is thinking by creating a linked ecosystem between your phone, tablet, game/entertainment console and computer, but their implementation so far has sucked donkey balls (and not in a things one goes to Tijuana to see way either). None of the other major players going for one login to rule them all (Apple, Google or Facebook) have enough of the pieces in place to pull this off, although Apple is probably the closest.

            1. Where in Tiji-uh I mean I don’t think this sort of ‘top-down’ streamlining ever works out. It has to an organic process and the best thing for MS to do would be to make a sandbox OS. Like where programs and other devices are to the OS what scripts are to FireFox/Chrome. Just let us do what we want, don’t force us into your shitty ‘optimization’ Top Men schemes.

        2. You can have your $100:
          Xbox Chief: If You Can’t Get Online, Don’t Buy an Xbox One

          So no taking it with you on road trips, to the cabin, etc. But since the Kinect is required to be connected to the system at all times, that would be a pain anyways (Speaking of which, can you say, “spycam hack security risk?”)

        3. On the other hand, who knows, if EA seems to have recognized their mistake, maybe down the line MS will also reconsider:


          EA Says Online Pass Used Game DRM “Was a Mistake”, Mum on Xbox One

          Top game publisher won’t say if it will embrace Microsoft’s option to ban used games

        4. These are the same folks who came up with the genius idea that MS Word, designed for people who write and read, needed a fast-food-industry graphic interface.

      1. Awesome. Fuck cloud gaming.

        1. What’s up with ‘cloud gaming’? What’s the advantage (aside from being able to access saves from anywhere)? Why is it bad (aside from security issues)?

        2. I prefer a mix. It was pretty great while in CT over Thanksgiving to be able to install Borderlands 2 on my laptop through Steam, and then to my surprise have my current character available to me when I started it up. Yet I can still play offline.

          Now, Diablo III on the other hand…

  4. I knew legalization would be a messy, stupid process, but the longer this farce persists and the more details emerge the readier I am to see the old guard of the drug war finally run to ground, stripped and sceaming, their effects distributed among the peoples, their flocks slaughtered and their lands salted.

    I’m in a foul mood today.

  5. Holy Shitballs, Lindsey Graham is such fucking asshole

    1. Slate + Wiegel + Lindsay Graham = Peak Retard.

    2. He doesn’t think supporting Ron Paul should demote donors to second-class citizens, but ENDING AG SUBSIDIES WILL DESTROY AMERICA.

    3. Graham is the epitome of old guard Republicans. I look forward to the day he is physically ejected from his congressional office, kicking and screaming about terrorist threats, evil brown people and gayz, by his duly elected libertarian replacement. He is second only to McCain in his Team Red insolence.

      Fuck that piece of statist shit!

      1. terrorist threats, evil brown people and gayz

        Dollars to doughnuts, “confirmed bachelor” Graham’s secret butt buddy is an illegal immigrant from Yemen with a name like Abu Ali ibn Mohammad ibn Hussein al-Kalif.

        1. He does appear to be overcompensating, doesn’t he?

        2. Lindsey Graham dying before he comes out and then a memoir by his affable and politically neutral lover about how horrible Graham’s childhood was and how emotionally scarred he is, would be the best possible outcome. I REALLY don’t want an openly gay Lindsey Graham running around.

      2. Grahamnesty hates brown people?

        1. If they’re Muslim, yeah


    A little late, but here goes:

    Hey! How’s it going? I’m all right.

    My job is so shitty I wish I could overthrow my boss. It’s like this oppressive regime where only true believers in his management techniques will stay around. I work marathon-length hours and he’s made all these changes that have made it the worst architecture firm to work at in Manhattan. Like he moved the office to the Financial District and fired my assistant. She was the only one who knew where the blueprints were! I need access to those blueprints to complete my job! F my life, right? And he keeps trying to start all these new initiatives to boost revenue, but seriously we just need to stick to what we do best. There’s only one true profit center. I seriously feel ready to go on strike at any second.

    I just read this article about how these free radical particles can cause the downfall of good health and accelerate aging. These could actually cause death to millions of Americans. If these particles are flying around undetected everywhere, does that mean we’re all radicalized?

    1. Have you seen the second season of Breaking Bad? I just finished it. I couldn’t believe that episode where they poison the guy with ricin! That was the bomb! I won’t say any more because I don’t want to reveal the earth-shattering events to come.

      Oh! So I’ve been planning a big trip for the summer. I’m thinking of visiting all of the most famous suspension bridges in the United States. So probably like the Golden Gate Bridge, The Brooklyn Bridge, and the Verrazano Narrows Bridge. I’m gonna bring my younger brother and I know he’ll want to go to bars, so I’m thinking of getting him a fake drivers license, but I hope that doesn’t blow up in my face.

      Okay, I gotta run! I’m late for flight school. I missed the last class where we learn how to land, so I really can’t miss another one. Talk to you later!

      1. This is fucking hilarious.

        1. It’s even better with the key words bolded, but I was late and didn’t take the time to do that.

          1. Allahu akbar! That was so explosively patriotic that it makes me not want to pay my taxes when ever I drive by that Federal Building in my car. “Bombs Away!” is my new favorite song by the Citizen’s Militia. Have you heard them? They’re playing at the neighborhood school with the AR-15s.

  7. Holy shit, Slate gets even stupider:….._needs_it/

    1. …that was over 2 years ago. Peak retard?

      1. Does 3 days ago count as new stupid or just continuing stupid?…..ll_a_cult/

    2. Gabriel Winant is a graduate student in American history at Yale.

      That explains a lot.

    3. This is a good thing. They’ve stopped ignoring us and have started attacking us. That means they are scared.

      Expect more of this and be ready to rationally counter.

  8. I’m sort of of the opinion that right now, if you really want full national legalization eventually, you should be doing whatever possible to avoid jeopardizing Colorado’s experiment. People have to learn that smoking weed doesn’t turn people into degenerates or addicts or child abusers. It’s going to take time.

    Right now, the number one thing that would fuck up Colorado’s experiment would be to have the Feds get involved because legal weed in one state ends up crossing interstate boundaries and thus threatens federal ‘regulation’ of marijuana. We do not want someone dragging Colorado’s laws before SCOTUS to give them a chance to say that federal regulation trumps state regulation.

    It seems to me that many of Colorado’s regulations right now are aimed at avoiding stepping on other states toes. They don’t want weed entering or leaving the state. That seems to be an eminently wise policy if you want weed to stay legal.

    1. “I’m sort of of the opinion that right now, if you really want full national legalization eventually, you should be doing whatever possible to avoid jeopardizing Colorado’s experiment”

      I’m having a hard time with this.
      CO voters said: ‘It’s legal’. CO government countered with ‘Well, it sorta legal if this, that and the other’.
      No, CO government, it’s LEGAL! There is no law proscribing its use. Get lost and leave smokers alone!
      If we accept that something “legal” is subject to this, that and the other, it’s not “legal”, it’s “permitted under X”
      FUCK ’em! I’m tired of “permitted”!

      1. It’s ok. You’re permitted to voice your opinions.

        1. Thank you. I presume they have be archived by the NSA?

      2. While I agree on principle, Hazel is right. Baby steps. We get a couple of small measures passed, the world doesn’t come to an end, and before you know it, we’ve got credibility. Then a few more measures and then you get a following. Before long you’ve got a movement.

        So ya gotta run the credit card a few times. It’s better than the way it was and is moving in the right direction. Give it a year or two before challenging its constitutionality.

        1. Francisco d Anconia| 6.12.13 @ 9:06PM |#
          “While I agree on principle, Hazel is right.”

          We’ll see.
          I’m predicting that the ‘legalization’ will be nothing more than one regulation after the other.
          “Legal” does not mean “regulated”.

          1. Yes it does.

            1. Uh, no, it doesn’t. Something being legal doesn’t mean it’s being regulated.

              1. Legal is regulation agnostic, but I don’t think anybody thought that they were going to make pot less regulated than tobacco or alcohol when pushing for legalization, in fact most of the people were saying “yeah, tax it and regulate it just make it legal, it’ll keep it out of the hands of kids!”

              2. darius404| 6.12.13 @ 11:17PM |#
                “Uh, no, it doesn’t. Something being legal doesn’t mean it’s being regulated.”

                Therein lies the difference.
                There are people who believe that the government “allows” us to do certain things, so long as we do them ‘correctly’ as defined by those in power.
                There are other people who believe that people can do whatever they damn well please so long as no one is harmed.
                I tend toward the latter.

            2. Cytotoxic| 6.12.13 @ 11:09PM |#
              “Yes it does”

              And to you, “War” = “Peace”
              We got your number when you walked in the door.

              1. See Jesse’s comment above. In the real world, legalization will be achieved in steps and stupid regulations are part of those steps. Doesn’t matter what my number is, I’m right and you’re wrong.

                1. What? You’re not commenting on what is likely to happen, but simply the meaning of something being illegal. Not only are you wrong, you’re being incredibly stupid about it. That’ not even mentioning the childishness of declaring “I WIN!” in an internet argument.

                  1. *legal

          2. It would take a pretty high burden of regulation to outweigh all of the terrible effects of marijuana prohibition nationally.

            We have people all of the country in PRISON for selling weed. We have parents and children who have been separated forcibly because the law disapproves of their parents pot smoking. We have people getting shot and killed over black market transactions.

            And you’re worried that when you road trip through Colorado, you’ll only be able to buy a quarter ounce?

            Get some perspective.

    2. The dormant Commerce Clause is…not that.

  9. I agree with Sevo’s prediction of regulations piled on ad nauseum. I know of many non-commercial growers who would simply ignore any future regulations just as they ignore the laws now.

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