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Does the ATF have jurisdiction to prohibit gun sales to marijuana users when the marijuana used is not subject to federal jurisdiction?

https://www.law.cornell.edu/wex/commerce_clause

If the marijuana used was grown locally and did not travel in interstate commerce it would seem that the use of marijuana in states where this use is legal could not be construed as illegal under federal law because the federal government lacks jurisdiction under the commerce clause.

Apparently smoking marijuana takes away your 2nd amendment rights:

https://www.atf.gov/firearms/docs/open-letter/all-ffls-sept2011-open-letter-marijuana-medicinal-purposes/download

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    AFAIK, courts have not agreed with that argument: even when a product is produced and consumed within a single state, they've held it can still "affect" interstate commerce, and therefore the federal government may have the power to regulate it. A famous example is Wickard v. Filburn where SCOTUS ruled the federal government could penalize a wheat farmer for growing more wheat than his quota, even though he fed it to his own animals. May 14 '20 at 18:45
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    Gonzales v. Raich, discussed on the page you linked, also seems relevant as it specifically held that a federal marijuana ban applied to the product produced and used within a state. May 14 '20 at 18:47
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    @NateEldredge The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause. Thus seemingly not applicable.
    – polcott
    May 14 '20 at 18:49
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    @polcott You might disagree with the court's holding in Gonzales v. Raich, but it's still the law of the land.
    – cpast
    May 14 '20 at 19:25
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    @polcott Marijuana being illegal on the federal level did not stop a national market for it developing, even long before any states even started to think about legalizing it for medicinal or recreational purposes. Just because trading in something is illegal doesn't stop people from trading in it. If it did, the war on drugs would have ended quickly and easily, and mobsters and the mafia would be a rapidly aging trope no one can directly relate to anymore. As such Congress can still regulate national markets in illegal goods. May 15 '20 at 6:25
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The Supreme Court has ruled, in Gonzales v. Raich, 545 U.S. 1, that Congress is empowered to pass the Controlled Substances Act: whether or not you agree with the ruling, that is what the current law is. Citing Wickard v. Filburn, 317 U.S. 111 and Perez v. US, 402 U.S. 146, the court held that

If Congress decides that the “‘total incidence’” of a practice poses a threat to a national market, it may regulate the entire class

because Congress may conclude that

failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity

Then comparing Raich (a medical marijuana case) and Wickard, the court held that

In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

and

the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA

While there are various differences between Wickard and Raich, the court gets to decide which similarities are most important and which differences should be set aside. The disagreement is not trivial: O'connor, Rehnquist and Thomas dissented, finding that the Commerce clause is there to

protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government

But it was a minority view that the states should have to power to set in-state rules for commerce.

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  • "production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity." Wait a minute here, what about mere consumption of that commodity? The above case would rule that the growers can't own guns. It doesn't seem to apply to the consumers.
    – polcott
    May 14 '20 at 20:14
  • Guns are covered by the Second Amendment.
    – user6726
    May 14 '20 at 20:22
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    Yes, that is true of various felonies.
    – user6726
    May 15 '20 at 0:16
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    @polcott Your argument seems to be “the Supreme Court got it wrong.” It doesn’t matter if you think the Supreme Court got it wrong. Unless the Supreme Court decides they interpreted the Constitution wrong or the Constitution is amended, the Supreme Court’s interpretation is by definition the correct one. Any argument that they’re wrong is an argument about what the law should be, not an argument about what the law is.
    – cpast
    May 15 '20 at 3:48
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    @polcott If you’re arguing that possession of marijuana that never left the state isn’t within Congress’s power to regulate, you have to start from the premise that Gonzales v. Raich is correct. If your argument requires Gonzales to be wrong, you’re arguing for a change in the law. Absent a constitutional amendment, only the Supreme Court can change this law (Congress could repeal the CSA but couldn’t bar a future Congress from reenacting it).
    – cpast
    May 15 '20 at 3:52
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If the marijuana used was grown locally and did not travel in interstate commerce it would seem that the use of marijuana in states where this use is legal could not be construed as illegal under federal law because the federal government lacks jurisdiction under the commerce clause.

You might think that, but you'd be wrong. In Gonzales v. Raich (545 U.S. 1), the respondents were California residents who used locally-grown marijuana in ways that were legal under California law. One respondent actually grew the marijuana herself and only used it herself, never selling or distributing it to anyone. Nevertheless, the Supreme Court held that the federal Controlled Substances Act could constitutionally regulate the respondents' activities. The basic reasoning was that despite the illegality of the marijuana market, there still is a national marijuana market that personal growth of marijuana could affect. You might think this is a tenuous argument, and you wouldn't be the only one to feel that way, but it is the law of the land.

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  • This seems to form a slippery slope where the federal government could take totalitarian control over anything involving commerce.
    – polcott
    May 14 '20 at 19:56
  • @polcott A concern many have raised (and going well beyond commerce), yes, but there are other relatively recent rulings on the commerce clause that actually pared down its otherwise very considerable power. A federal law regarding guns near schools was struck down because the basis for invoking the commerce clause was too tenuous and distant. However a subsequent modification to that law that made it apply to guns that were transported between states near schools has been upheld because it explicitly invokes and restrains itself to matters of interstate commerce. May 15 '20 at 6:16

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