(2007): The Ninth Circuit Court of Appeals put what appears to be the final touches on the Raich case on March 14, 2007. In McClary-Raich v. Gonzales, the court addressed the outstanding issues remaining after the Supreme Court's pronouncement that the federal government has the authority under the Commerce Clause to regulate medical marijuana. In particular, the Ninth Circuit held that McClary-Raich: (1) could not obtain a preliminary injunction to bar enforcement of the Controlled Substances Act (CSA) based on common law medical necessity, although she appeared to satisfy the factual predicate for such claim; (2) application of the CSA to medical marijuana cultivators and users did not violate substantive due process guarantees; and (3) the Tenth Amendment does not bar enforcement of the CSA.
Although the outcome was not positive, there was plenty of language in the decision that bodes well for the future of medical marijuana. In particular, with respect to the claim that there is a fundamental liberty interest to use marijuana medicinally, deserving of constitutional protection, the court stated: "We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'" The court continued: "For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected."
Also, although the court found that McClary-Raich could not affirmatively use a common law medical necessity defense to obtain an injunction in a civil suit, it did not foreclose the possibility that a criminal defendant might do so. Click to view the ruling.
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