Pubdate: Tue, 22 Mar 2016
Source: New York Times (NY)
Copyright: 2016 The New York Times Company
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Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak

SUPREME COURT DECLINES TO REVIEW COLORADO LAW LEGALIZING MARIJUANA

WASHINGTON - The Supreme Court on Monday declined to hear an unusual 
lawsuit challenging Colorado's legalization of recreational marijuana 
and told a Massachusetts court to take a new look at a Second 
Amendment case involving stun guns.

In the marijuana case, two states sought to use a rare procedure to 
attack the Colorado law, asking the justices to allow them to file a 
lawsuit directly in the Supreme Court. The Constitution gives the 
court such "original jurisdiction" to hear disputes between states, 
but the court uses it sparingly, most often to adjudicate boundary 
disputes or water rights.

"The State of Colorado authorizes, oversees, protects and profits 
from a sprawling $100-million-per-month marijuana growing, processing 
and retailing organization that exported thousands of pounds of 
marijuana to some 36 states in 2014," two neighboring states, 
Nebraska and Oklahoma, told the court. "If this entity were based 
south of our border, the federal government would prosecute it as a 
drug cartel."

In 2012, Colorado voters amended the state's Constitution to allow 
recreational use of marijuana and to regulate its sale and 
distribution. Nebraska and Oklahoma did not challenge the law's 
decriminalization of the drug's possession and use, but said other 
parts of the law were at odds with federal law and had vast spillover 
effects, taxing neighboring states' criminal justice systems and 
hurting the health of their residents.

Colorado told the justices that its neighbors were pursuing a curious 
and counterproductive strategy in the case, Nebraska v. Colorado, No. 144.

"Nebraska and Oklahoma concede that Colorado has power to legalize 
the cultivation and use of marijuana - a substance that for decades 
has seen enormous demand and has, until recently, been supplied 
exclusively through a multibillion-dollar black market," Colorado's 
brief said. "Yet the plaintiff states seek to strike down the laws 
and regulations that are designed to channel demand away from this 
black market and into a licensed and closely monitored retail system."

Solicitor General Donald B. Verrilli Jr., the federal government's 
top appellate lawyer, urged the justices to refuse to hear the case.

"Nebraska and Oklahoma essentially contend," he wrote, "that 
Colorado's authorization of licensed intrastate marijuana production 
and distribution increases the likelihood that third parties will 
commit criminal offenses in Nebraska and Oklahoma by bringing 
marijuana purchased from licensed entities in Colorado into those 
states. But they do not allege that Colorado has directed or 
authorized any individual to transport marijuana into their 
territories in violation of their laws."

Both Mr. Verrilli and Colorado officials added that Nebraska and 
Oklahoma could pursue their objections in a more conventional suit 
filed in a federal trial court.

The Supreme Court did not explain why it declined to hear the case. 
Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., 
dissented, saying that the case presented a substantial question and 
that the court was required to hear it. "The plaintiff states have 
alleged significant harms to their sovereign interests caused by 
another state," Justice Thomas wrote.

In the second case, Caetano v. Massachusetts, No. 14-10078, the court 
in an unsigned opinion rejected the reasoning of the Massachusetts 
Supreme Judicial Court, which upheld a state law that made it a crime 
for most people to possess stun guns. The state court said the Second 
Amendment did not apply to stun guns.

There were no noted dissents. But, in a concurrence, Justice Alito, 
joined by Justice Thomas, called the majority's approach "grudging."

The majority did not itself assess the constitutionality of the 
stun-gun law and instead returned it to the state court "for further 
proceedings not inconsistent with this opinion."

The justices did say that the reasons offered by the state court for 
sustaining the law were at odds with the Supreme Court's 2008 
decision in District of Columbia v. Heller, which established a 
constitutional right to keep guns at home for self-defense. The 
Heller decision left a great many other open questions.

The unsigned opinion said the Massachusetts court had erred, for 
instance, in reading the Heller decision to say weapons not in common 
use in the 18th century were not protected by the Second Amendment.

Justice Alito elaborated. "Electronic stun guns," he wrote, "are no 
more exempt from the Second Amendment's protections, simply because 
they were unknown to the First Congress, than electronic 
communications are exempt from the First Amendment, or electronic 
imaging devices are exempt from the Fourth Amendment."

Justice Alito said his colleagues should have done more than send the 
case back to the state court for another look.

"The lower court's ill treatment of Heller cannot stand," he wrote. 
"The reasoning of the Massachusetts court poses a grave threat to the 
fundamental right of self-defense."

He suggested that he would have voted to strike down the law. "While 
less popular than handguns, stun guns are widely owned and accepted 
as a legitimate means of self-defense across the country," Justice 
Alito wrote. "Massachusetts' categorical ban of such weapons 
therefore violates the Second Amendment."

The case arose from the arrest of Jaime Caetano, a woman who had used 
a stun gun for protection from an abusive former boyfriend. "It is a 
good thing she did," Justice Alito wrote.

"If the fundamental right of self-defense does not protect Caetano," 
Justice Alito added, "then the safety of all Americans is left to the 
mercy of state authorities who may be more concerned about disarming 
the people than about keeping them safe."
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MAP posted-by: Jay Bergstrom