Pubdate: Fri, 03 Dec 2004
Source: Rocky Mountain News (Denver, CO)
Copyright: 2004, Denver Publishing Co.
Author: Robert J. Corry, Jr.
Note: Robert J. Corry Jr. is a Denver attorney who represented Dana K. May 
in the case discussed above.
Cited: Raich v. Ashcroft
Bookmark: (Cannabis - Medicinal)
Bookmark: (Angel Raich)
Bookmark: (Conant vs. McCaffrey)


Assault weapons drawn, dozens of black-clad federal agents, in full
riot gear and body armor, burst into a peaceful suburban Aurora home
at the end of quiet cul-de-sac. No, they don't seek Osama bin Laden;
instead, agents scour every nook and cranny for that pernicious threat
to national security: state-approved medical marijuana, used by sick
patients for relief from illness and pain, as Colorado voters intended.

Inside the home, agents find a terrified man who peacefully presents
his state of Colorado-issued card and certificate, the government's
permission for him to grow, possess and use medical marijuana. This
gentle man, Dana K. May, suffers from reflex sympathetic dystrophy, a
debilitating and potentially lethal nerve disease with pain so intense
that some of its sufferers take their own lives. May, a clean-cut
Republican and married father of three, describes the pain as though
"my feet are in a deep fryer."

A U.S. Drug Enforcement Administration agent snatches his state-issued
card, arrogantly saying "we're DEA, we don't follow Colorado's
Constitution." Then, federal agents trash May's home. Agents find what
they seek: May's modest medical marijuana garden, tucked in his
basement behind two locked doors. They rip out of the soil the plants
painstakingly tended as a "labor of love" by a man who uses medical
marijuana only as a last resort.

May had spent seven years trying every possible prescription drug
including synthetic marijuana, none of which were remotely effective
for his intense pain, and all of which are expensive and unhealthy.
May reluctantly turned to medical marijuana in 2001, only as a last
resort for pain, only after his longtime, trusted doctor's
recommendation, and only because medical marijuana is legal in
Colorado, having been approved by voters in 2000. May's three kids
fully understand that marijuana is OK only for Dad, only as medicine,
and only by prescription and state approval.

After seizing May's medicine, ruining his life for six months by
bringing back the excruciating pain, the federal government eventually
backs down in the face of a lawsuit, and return May's growing
equipment. Now, May is growing again - this time at an undisclosed
location - living in constant fear that federal agents again might
break down his door for doing something the voters of Colorado approved.

On Nov. 29, the U.S. Supreme Court heard arguments in a case that
could end terrifying incidents like Dana May's. In the case of
Ashcroft v. Raich, the high court will consider whether the federal
government can enforce federal drug laws against medical marijuana
patients operating under state laws. Currently, 11 states have
legalized medical marijuana, and that number is expected to grow.

At issue is the U.S. Constitution, Article I, Section 8, the Commerce
Clause, which grants Congress the power to "regulate Commerce . . .
among the several States." The Constitution created a limited federal
government that could act only within its enumerated powers, and did
not have general authority to do anything it wanted.

Somehow, the act of growing medicine in your own home, using it in
your own home, never selling it, and never even taking it out of your
own home, much less the State of Colorado, became "commerce among the
several states." This case is important because if May's growing
medical marijuana is not interstate commerce, then the federal
government has no power to seize his medicine. But if his actions
completely within his own home are interstate commerce, then
everything is interstate commerce.

The Founding Fathers' dream of a limited federal government of
enumerated powers has become a twisted nightmare where the
Constitution does not mean what it says, and where there is no limit
to federal power because the Commerce Clause is meaningless. This case
is larger than just medical marijuana; it concerns the creeping
expansion of federal power at the expense of the voters of the state
of Colorado who wish to govern themselves.

Obviously, May's actions are not "commerce" and they are certainly not
"interstate." Common sense and lower courts agree. The distinguished
U.S. Court of Appeals Judge Alex Kozinski, a Ronald Reagan appointee,
wrote in Conant v. Walters that "Medical marijuana, when grown locally
for personal consumption, does not have any direct or obvious effect
on interstate commerce. Federal efforts to regulate it considerably
blur the distinction between what is national and what is local."
Let's hope the Supreme Court will make this blurred distinction
crystal clear.

Robert J. Corry Jr. is a Denver attorney who represented Dana K. May in the 
case discussed above. 
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