Title: As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next? Source:
Reason URL Source:http://reason.com/archives/2016/09/ ... rijuana-prohibition-winds-down Published:Sep 13, 2016 Author:J.D. Tuccille Post Date:2016-09-13 20:08:30 by Hondo68 Keywords:end the WOD, intrusive, powers and dangerous toys, the New Deal regulatory state Views:13253 Comments:67
It isn’t enough to end just one restrictive law, we have to disempower the prohibitionists.
Marijuana "does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse," the Drug Enforcement Administration sniffed in an August public announcement refusing to consider easing restrictions on the stuff. The announcement seemed to deliberately miss the point since a majority of Americans favor legalizing marijuana for fun, not just medicine. That the feds are fighting a rear-guard action on the issue is apparent from the fact that half the states in the country are currently ignoring D.C. on the issue, legalizing the sale and use of marijuana for recreation or sometimes broadly defined medicinal purposes. Arizona and California, at least, look poised to further loosen the law in November, with others to follow.
But as marijuana prohibition falls, the drug cops have a backup plan. Just weeks after the marijuana announcement, the federal regulator of stuff that makes us feel good "announced its intention to place the active materials in the kratom plant into Schedule I of the Controlled Substances Act in order to avoid an imminent hazard to public safety." The original sin of the Southeast Asia-sourced plant is "its ability to produce opioid-like effects and [that it] is often marketed as a legal alternative to controlled substances."
Which makes the stuff a potentially handy reefer madness substitute if you need a new drug to stand in for a relegalizing old one as you try to justify the continued funding of an expensive and potent federal agency. After all, that agency is staffed by well-paid employees who've come to enjoy using the intrusive powers and dangerous toys they've been given to satisfy the whims of the moral scolds in our midst.
We've been down this path before. As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics—a predecessor agency to the DEA—and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.
"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State.
"The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."
McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.
But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around.
"Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.
People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.
Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities—urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people—African-Americans, in particular--whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.
Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.
So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall. Prohibition has its own logic—of control and power—that has very little to do with the specific prohibition at any given moment. Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.
So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove. What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place.
Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.
Here in Oregon it has been nice to see these plants back in people's gardens now cannabis is legal.
Marijuana is illegal in all 50 states and all 52 federal jurisdictions. Raich v. Gonzales, 545 U.S. 1 (2005). "...the fact that marijuana is used 'for personal medical purposes on the advice of a physician' cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; if fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses."
State law that has been wordsmithed provides an affirmative defense against state prosecution for medical marijuana. An affirmative defense requires one to admit the commission of unlawful acts and plead an affirmative defense, an excuse accepted in accordance with a provision of state law. In doing so, a federal crime is admitted.
While a budget rider in effect until September 30th withdraws federal funds for prosecutiing marijuana in some states (not Ohio), if it is allowed to expire, or if funding is provided, the feds can prosecute unless the statute of limitations has expired.
If you flunk a random drug test, your employer can fire you. If you get a state-issued medical marijuana license, the feds can deny your application to purchase a gun.
Marijuana is not legal anywhere in the United States. The crime is currently not prosecuted in some places.
And if you go into the Multnomah County Court house and screening deputies looking through your bag will look at it and leave it alone. The place I work up here gave me a pee test and I passed it because THC was all they found. Few people bother worrying about cannabis use here. If you are in public and smoking on the street all you have to worry about is someone wanting to join you. Sure, the repression is leaving too slowly, but the laws and repression was never ever justified, and the money to be made in that industry is too tempting to believe the laws will not become history.
And if you go into the Multnomah County Court house and screening deputies looking through your bag will look at it and leave it alone. The place I work up here gave me a pee test and I passed it because THC was all they found.
The State is not required to enforce Federal law. They cannot convert something that is a Federal crime into lawful activity.
Had your employer decided to fire you for testing THC positive, you're screwed.
See Brandon Coats v DISH Network, LLC In Colorado, he was fired for having a positive drug test. In a proceeding on a motion to dismiss his case for failure to state a claim, the district court in Colorado stated:
These interpretations of the Medical Marijuana Amendment limit the effect of the amendment as an affirmative defense to criminal prosecution. The amendment does not make the use of medical marijuana a lawful activity, so as to preclude an employer from termination based on this conduct.
CONCLUSION
Because the Court finds that use of marijuana, even where such use is in full compliance with Colorado‟s Medical Marijuana Amendment, is not a lawful activity, Plaintiff‟s Complaint must be dismissed pursuant to C.R.C.P. 12(b)(5) for failure to state a claim.
Upheld on appeal. A Federal amendment to the 2016 budget currently withholds funding for Federal prosecutions of medical marijuana prosecutions. That law expires in two weeks. If the withholding is not renewed, or funding is provided, prosecutions could commence for violations going back to anything within the statute of limitations.
You may be denied the right to possess any firearm of ammunition. See S. Rowan Wilson v Eric Holder, U.S. District Court, Nevada (2014).
The ATF stated that "if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have 'reasonable cause to believe' that the person is an unlawful user of a controlled substance," meaning "you may not transfer firearms or ammunition to the person."
In Wilson, the 9th Circuit stated that, "in Dugan, we held that the Second Amendment does not protect the rights of unlawful drug users to bear arms, id.. at 999-1000, in the same way that it does not protect the rights of 'felons and the mentally ill,' Heller, 554 U.S. at 626-27."
In light of the existing holding in Dugan, that violating Federal marijuana law by possessession/use made one ineligible to possess firearms, Ms. Wilson argued on appeal that she obtained a Medical Marijuana Card but did not use it. The question in Wilson became whether mere possession of a Medical Marijuana Card was sufficient to make one ineligible to possess firearms. The court said that it was.
At page 2 of the slip op.:
However, under the Controlled Substances Act, marijuana is listed as a controlled substance that cannot be lawfully prescribed and that the general public may not lawfully possess. 21 U.S.C. § 802(6); 21 U.S.C. § 812(c), Sched. I(c)(10). There is no provision under Federal law that permits any class of the general public to lawfully possess marijuana, including those wishing to use marijuana for medical purposes. See 21 U.S.C. § 823(f) (providing an exception to the ban on possession of Schedule I drugs for federally approved research projects); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005) (“By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the . . . possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study.”). In contrast, the Controlled Substances Act expressly recognizes that “there is a lack of accepted safety for use of [marijuana] under medical supervision.” 21 U.S.C. § 812(b)(1)(A)–(C). See 21 U.S.C. § 829; see also United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (“Whereas some other drugs can be dispensed and prescribed for medical use, . . . the same is not true for marijuana.”).
Furthermore, the Federal Gun Control Act of 1968 (“Gun Control Act”) prohibits “any person . . . who is an unlawful user of or addicted to any controlled substance . . . [to] possess . . . any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(3). Additionally, § 922(d)(3) prohibits any person from selling or otherwise disposing of “any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance . . . .” 18 U.S.C. § 922(d)(3).
You can make believe all you want, but if the Feds find you worth prosecuting, State law is no defense.
You have yet to tell me anything I already did not know. You must be mistaking my absolute disregard for concern as ignorance of the legal paradigm of canabis. This is not so.
I know well that there is no true justifiable reason for these laws. And the weight of that truth will eventually be the death of anti cannabis law. I am a political activist, not a lawyer.
I know well that there is no true justifiable reason for these laws. And the weight of that truth will eventually be the death of anti cannabis law. I am a political activist, not a lawyer.
As long as you know the legal risk you take, you may choose to violate the law. Many people drive down the interstate at 80 MPH. If a trooper decides to ticket you, that's the risk you take.
And the weight of that truth will eventually be the death of anti cannabis law.
I doubt legal recreational marijuana use is in the near future. A major problem is in the workplace.
As the state have proven themselves unable or unwilling to regulate marijuana as medicine in a responsible manner, it is also unlikely that medical marijuana will be declared to be legal either.
In any case, it cannot pass the required tests in plant form.
Derivatives without the stuff that gets you high will be developed and marketed.
People are already showing up to work high - or drunk - so why should legalization mean a major change in the workplace?
People show up drunk as well. People get fired. Testing for pot use is not as simple.
Would people who pop a positive on a random drug test still be fired?
Would the employer be required to keep known, card-carrying, positive drug test potheads operating heavy industrial equipment to the possible endangerment of other employees who may be required to work with their back to the potheads?
Would the employer be able to maintain a safe workplace?
Would the employer be liable to be fined by OSHA if known card-carrying potheads are permitted to operate heavy industrial equipment in the workplace?
Some law or regulation would be required for potheads who bring their high into the workplace.
The stuff that gets you high also has medical applications.
So does rat poison and morphine.
Marijuana is not lawfully prescribable as medicine.
People show up drunk as well. People get fired. [...] Would the employer be required to keep known, card-carrying, positive drug test potheads operating heavy industrial equipment
Are employers now required to keep drunks operating heavy industrial equipment?
Are employers now required to keep drunks operating heavy industrial equipment?
In protected employment (govt job, union job) they are not fired for being drunks.
Employees may be fired for being under the influence at work. They may be subjected to a test to show whether they exceed a specific level of alcohol. People with at-will employment may be fired for no reason at all. They do not have a property right in the job.
As you dodged the questions, I will repeat them for your convenience.
People show up drunk as well. People get fired. Testing for pot use is not as simple.
Would people who pop a positive on a random drug test still be fired?
Would the employer be required to keep known, card-carrying, positive drug test potheads operating heavy industrial equipment to the possible endangerment of other employees who may be required to work with their back to the potheads?
Would the employer be able to maintain a safe workplace?
Would the employer be liable to be fined by OSHA if known card-carrying potheads are permitted to operate heavy industrial equipment in the workplace?
Some law or regulation would be required for potheads who bring their high into the workplace.
And add:
Would a card-carrying pothead be allowed to pilot a commercial airplane?
What enforceable regulation for off-duty pot use could be created?
Could the employee use pot during working hours?
As there is no test similar to a breathlyzer for pot, what would be a legal limit and how would it be tested?
Could an employer have an enforceable zero-tolerance policy?
Employees may be fired for being under the influence at work. They may be subjected to a test to show whether they exceed a specific level of alcohol. People with at-will employment may be fired for no reason at all. They do not have a property right in the job.
Then there's no reason to expect any different treatment of employees who use legal marijuana - and all your questions are answered.
