Pubdate: Sun, 08 Sep 2013
Source: Denver Post (CO)
Copyright: 2013 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Emily Bazelon, Slate
Note: Emily Bazelon is a Slate senior editor and writes about law, 
family and kids.

LAWS ON MARIJUANA AND GUNS TEST FEDERAL CONTROL

Washington and Colorado are getting lots of love on the left for 
legalizing recreational marijuana use. The states are especially 
looking like winners now that the Obama administration has announced 
that as long as they set up a "tightly regulated market" for pot 
sales, it won't send DEA agents and prosecutors after the newly 
emboldened sellers and growers who are setting up shop.

Seen another way, Washington and Colorado opened the door to the 
federal government to loosen its own strict bans on marijuana use - 
and the Obama administration just walked through it.

At the same time, liberals have nothing good to say about a rash of 
state bills that aim to defang federal enforcement of gun laws. The 
latest proposal, in Missouri, was vetoed by Democratic Gov. Jay Nixon 
but is scheduled for a second vote to override him later this month. 
Missouri's bill has rightly gotten tagged as wacko for going so far 
as to make it a crime for a federal agent to enforce a federal gun 
law - for example, by conducting a background check or inspecting a 
gun seller's license.

The idea of arresting ATF officers is crazy enough that in Wyoming, a 
state that actually has such a law on the books, no such arrests have 
reportedly been made. That's not really a surprise: These state 
efforts to nullify federal gun laws are better understood as a form 
of protest against federal power in general and federal laws about 
guns in particular. They've got little to no chance of holding up in court.

In the land of reality, as opposed to rhetoric, they're a lot less 
meaningful in terms of shifting the balance of federal and state 
power than marijuana legalization.

The most obvious reason that the pot laws are more effective as a 
curb on federal power is their indirect approach.

Washington state and Colorado aren't directly challenging the bans on 
marijuana enacted by Congress. And they're sure not threatening to 
arrest any federal agent for enforcing those bans. Instead, the 
states simply boxed the feds in. The Justice Department can let the 
marijuana storefronts open, as Washington and Colorado voters have 
asked for, or shut it all down in the name of federal power.

The Justice Department already had to make this kind of call, on a 
smaller scale, when states like Colorado and California legalized 
medical marijuana.

Justice said in 2011 that it wasn't an "efficient use of federal 
resources to focus enforcement on individuals with serious 
illnesses," as in, medical marijuana users.

But at that point, DOJ also warned that "large-scale" marijuana 
growers and sellers should not imagine themselves shielded in any way.

The big shift in the new memo to the country's U.S. Attorneys, issued 
by Deputy Attorney General James Cole in August, is its statement 
that if a state has strong regulations in place, and the marijuana 
business is complying with them, this "may allay the threat that an 
operation's size poses to federal enforcement interests." And so, "in 
exercising prosecutorial discretion, prosecutors should not consider 
the size or commercial nature of a marijuana operation alone as a 
proxy for assessing whether marijuana trafficking implicates the 
Department's enforcement priorities." In other words, bigger no 
longer means scarier, because bigger no longer means giant illegal drug cartel.

It could someday mean a clean-cut chain, even the Starbucks of Pot.

That's why marijuana advocates are largely cheering Justice's new 
stance, even though there's an argument it's not really a big deal, 
since it includes lots of muscle-flexing language about how the feds 
retain the right to go after any pot grower or seller or user if they 
choose. I'll go with the cheering section here: For federal law 
enforcement to walk by a storefront with a marijuana display in the 
window sounds like Amsterdam to me. The pro-pot laws in Washington 
and Colorado don't have to directly challenge federal law to change it forever.

The gun nullification laws, on the other hand, are all about a frontal assault.

They're the brain child of Gary Marbut, maker of a rifle called the 
Montana Buckaroo, who "dreams of taking down the federal regulatory 
state," as Jess Bravin of the Wall Street Journal wrote two years 
ago. Marbut thinks the 10th Amendment reserves some unspecified 
powers to the states and trumps the other parts of the document (like 
the Commerce Clause) that give Congress lots of law-making power.

Marbut's proposed law, first passed in Montana, was called the 
Firearms Freedom Act. According to firearmsfreedomact.com, nine 
states have enacted some version of Marbut's law, and 26 others have 
introduced bills to do so. Most of the time, however, the Firearms 
Freedom Act looks a lot more limited and less nutty than the bills in 
Wyoming and Missouri. The majority of these state laws don't threaten 
federal agents with arrest.

Instead, they state that Congress can't regulate any guns that are 
made and held within the state, because these firearms don't count as 
interstate commerce (which is what the Constitution's Commerce Clause 
says that Congress can regulate).

Libertarian groups like the Cato Institute have embraced this logic, 
and argued in favor of Marbut's position in a lawsuit over Montana's 
Firearms Freedom Act. In August, however, they lost in the U.S. Court 
of Appeals for the 9th Circuit. Legally, this is an easy case: 
Congress can regulate activities that "in the aggregate, 
substantially affect interstate commerce," as the court put it. 
That's true of the possession of homemade guns like the Buckaroo 
because "even if Marbut never sells the Buckaroo outside of Montana, 
Congress could rationally conclude that unlicensed firearms would 
make their way into the interstate market." Case closed.

The gun nullification laws are a sideshow.

The marijuana laws, on the other hand, are about substance rather 
than symbolism. "The pot laws aim to secure for people the ability to 
use marijuana, which federal law completely denies them," UCLA law 
professor Adam Winkler explained. "The state gun laws you're talking 
about, on the other hand, are not about giving people a right to 
self-defense that federal law denies them. Federal law doesn't deny 
that right at all. It allows every law-abiding citizen to have a gun 
for self-defense."

In the end, state laws legalizing marijuana could topple a huge 
federal beast - the war on drugs - while the gun nullification bills 
are showy but impotent.
- ---
MAP posted-by: Jay Bergstrom