No Constitutional Right To Medical Marijuana
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No Constitutional Right To Medical Marijuana
Posted by CN Staff on September 12, 2012 at 10:47:54 PT
By Charles S. Johnson,  Missoulian State Bureau
Source: Missoulian
Helena -- There is no fundamental right for patients to use any drug, particularly one like medical marijuana that’s illegal under federal law, the Montana Supreme Court ruled Tuesday, in reversing a lower court decision.In a victory for the state, the Supreme Court’s 6-1 decision reversed a District Court’s temporary injunction that blocked enforcement of part of a 2011 state law that sought to restrict access to medical marijuana.
“In pursuing one’s health, an individual has a fundamental right to obtain and reject medical treatment,” Justice Michael Wheat wrote for the majority. “But, this right does not extend to give a patient a fundamental right to use any drug, regardless of its legality.”Joining Wheat in the majority were Chief Justice Mike McGrath and Justices Jim Rice, Beth Baker and Brian Morris and District Judge Susan Watters of Billings, who filled in for Justice Patricia Cotter. Justice James Nelson dissented.The Supreme Court overturned Helena District Judge James Reynolds’ June 2011 decision that temporarily blocked restrictions to access to medical marijuana in the 2011 law. It sent the case back to Reynolds and directed him to apply the “rational basis” test rather than the “strict scrutiny” test to determine whether certain provisions of the law should be enjoined.A “rational basis” test begins with the assumption that a law is constitutional unless it’s not rational. Under a “strict scrutiny” test, there is a heavier burden on the state to justify a law and it must establish a compelling state interest.State Justice Department officials received the opinion late in the day and wanted to analyze it before commenting on the ruling, spokeswoman Judy Beck said.James Goetz, the Bozeman attorney representing the Montana Cannabis Industry Association and other plaintiffs, said the state won this round, “but we’re not done yet.” He said he will file an alternate argument under the “rational basis” test before the District Court that the 2011 law doesn’t pass muster.“So we will take that back to the District Court because this law is indeed not rational,” Goetz said. “I don’t see how any rational court could find this law rational.”Goetz said he doubts that the case will go before the District Court before the November election.Last year, medical marijuana supporters obtained enough signatures to place the 2011 law on the ballot as a referendum. Voters on Nov. 6 will decide whether to keep or reject the law.In 2011, the Montana Legislature changed the law to allow a medical marijuana provider to serve only three cardholders and forbade them from accepting any payment for medical pot, although cardholders could pay their licensing fees. Previously, there had been no limits on the number of people providers could serve, and they could charge fees for selling medical marijuana.The Montana Cannabis Industry Association sued shortly after the 2011 Legislature adjourned in an attempt to strike down the entire law. Reynolds temporarily enjoined several parts of it.Montana voters had approved Initiative 148 in 2004 to legalize the use of marijuana for certain medical purposes here. However, marijuana remains illegal under federal law.The number of medical marijuana cardholders had skyrocketed to more than 27,000 before the 2011 Legislature convened. The numbers soared after a series of “cannabis clinics” around the state in which people could obtain medical pot cards in a matter of a few minutes, often through Internet consultations with out-of-state doctors.Wheat said the right to privacy “does not encompass the affirmative right of access to medical marijuana.”“The plaintiffs may decry that the Legislature gutted I-148, but it was within the Legislature’s right to do so,” Wheat wrote.The new medical marijuana framework “does not suddenly raise the affirmative right to access a particular drug to a fundamental right protected by our constitution,” Wheat wrote. “Moreover, the plaintiffs cannot seriously contend they have a fundamental right to medical marijuana when it is still unequivocally illegal under the (U.S.) Controlled Substances Act.”The plaintiffs also had contended that medical marijuana providers had a right to employment, and the new law interfered with that right.The Supreme Court said an individual has no property right in a particular job or employment, adding in effect that medical pot providers can grow other products instead.“Providers, who are ultimately horticulturists, remain free to pursue horticulture work generally and further are not proscribed from practicing the art of horticulture – including hydroponic horticulture – for profit,” the decision said.In his dissent, Nelson said the court should have vacated the District Court’s decision and sent it back to Reynolds with instructions to dismiss the lawsuit.“Stripped to its core, the remarkable premise underlying plaintiffs’ request for relief in this case is that they have a fundamental right under the Montana Constitution to engage in conduct which is criminal under federal law,” Nelson said. Source: Missoulian (MT) Author: Charles S. Johnson,  Missoulian State BureauPublished: September 12, 2012 Copyright: 2012 Missoulian Contact: oped missoulian.comWebsite URL: Medical Marijuana Archives 
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Comment #10 posted by Sinsemilla Jones on September 16, 2012 at 22:01:50 PT
Me, too, Hope!
"I think humans have a natural human right to cultivate, keep and consume any plant."
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Comment #9 posted by Hope on September 14, 2012 at 10:07:08 PT
Natural rights and laws.
A law that was made before most of us were born took our natural right from us.We intend to get it back for our fellow humans. I think humans have a natural human right to cultivate, keep and consume any plant. We should have our natural human rights, like we have to air and water, and plants restored, to include non commercial growing of cannabis, poppies, and coca, too. Yes, they made a law. The law is unjust and needs to changed. Natural human rights need to be restored.They went too far with government and laws when they made cannabis, poppies, and coca plants against the law and they went hog wild and ape poop crazy when they made killing and imprisoning people over these plants a government job.
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Comment #8 posted by runruff on September 14, 2012 at 08:17:30 PT
"No constitutional right"?
This guy needs to lay off the Red Bull and 5-Hour Energy toxic tonics.I believe his warped intellect has spun him out into the land of Door Mice and Mad Hatters.For the sake of those of you who's memory is as short as a finger burning roach, cannabis is a plant! It can't hurt you. It is not really the tool of the devil nor did he invent this plant. Anslinger invented marijuana, God created cannabis and hemp. Any questions? The answer is yes!
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Comment #7 posted by boballen131313 on September 14, 2012 at 04:58:24 PT:
Our Right to Cannabis
Our right to enjoy cannabis comes from a far higher authority than some mere mortal supreme court. To actually usurp God's authority to dispense His blessings is treading on shaky ground indeed.
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Comment #6 posted by schmeff on September 13, 2012 at 11:08:46 PT
Constitutional Right? Try Constitutional Fraud.
No Constitutional Right To Medical MarijuanaNice headline. How about this one: No Constitutional Right To Brush Your Teeth...or No Constitutional Right To Own a Pet.I guess the Honorable Judge Michael Wheat got his law degree in a box of Cracker Jacks. See, here's the deal, Judge Wheat, the Constitution doesn't enumerate the rights of the people, it limits the powers of the government.The choices and options available to a free people are too numerous to specifically address in a governing document like the Constitution. That's why Articles IX and X SPECIFICALLY state that powers NOT delegated to the Congress are retained by the people... things like the right to practice dental hygiene or utilize medicinal plants.Here's the important part, Judge Wheat; the Constitution does not empower the government to practice medicine, or limit or interfere in what free citizens choose to consume or utilize in pursuit of their physical, mental, emotional and spiritual well being.So instead of focusing on the trivial and totally-beside-the-point fact that "There is no fundamental right for patients to use any drug...", we should instead recognize what IS important and seems to be overlooked in the bowl of Cream of Wheat that apparently resides where one would ordinarily expect to find Judge Wheat's brain, which is...There is no fundamental Constitutional power for the government to deny any citizen the use any drug.Until the Constitution is legally amended to grant Congress this power, all this extra-constitutional 'controlled substance' BS should be null and void.And Judge Wheat should be sentenced to three semesters of remedial high school social studies.
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Comment #5 posted by ekim on September 13, 2012 at 08:44:05 PT
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Comment #4 posted by museman on September 13, 2012 at 08:42:51 PT
lawn order
This is what happens when you give all the power to one group of people -like lawyers.We should have never given them the right to re-invent the language. Now they can twist words and meanings into any shape they feel serves their purpose.Common sense? Not in law. Law is to keep the wealthy safe from our liberty, because if we had freedom, they would not have all these consumer slaves to keep them wealthy. They would not have corruption of false authority and law to disable the poor and enable the rich.If there is one class of people we can do without, its the lawyers. Get rid of them and all the firewalls protecting the rich from their due justice come down.But that's not going to happen by voting, because we are voting in their game, under their rule/s. They supply the 'candidates' (every last one of 'em) so we get to 'choose' the politician of their choice.There is a very rude awakening coming for many americans. You think the past few years of 'economic' collapse was bad? 
Wait til after the election. -my prediction-.If it hadn't been for cannabis assisting a few thousand people in achieving some true consciousness over the past 50 years, there would be very few who could see the truth behind all these political power plays. In fact, it seems that the elite are so full of themselves they don't know that many of is are now looking through the veil of deception right at their greedy corrupted faces. They still believe themselves superior in every way. Most americans unfortunately seem to believe in their superiority as well, or they wouldn't continue -in any kind of consciousness- to support these demonic posers any more than they have to. They certainly wouldn't be arguing status quo legaleze to justify their own slavery! NO, I'm afraid Plan B will have to be instituted.What is 'Plan B' you ask?Check out every ancient prophecy -they all concur- don't take my word for it, heaven forbid it should be that easy!LEGALIZE FREEDOM
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Comment #3 posted by The GCW on September 13, 2012 at 07:38:44 PT
Arkansas news
Lawsuit Seeks to Get Medical Marijuana Proposal off Arkansas's November Ballot Coalition to Preserve "Arkansas Values"
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Comment #2 posted by The GCW on September 12, 2012 at 21:14:42 PT
Colorado election news
Gov. Hickenlooper opposes marijuana legalziation measure the blue book argument, in court, failed, today.
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Comment #1 posted by Richard Zuckerman on September 12, 2012 at 16:06:25 PT:
File a timely Petition for Certiorari!!!!
Somebody please ask the Appellant's attorney to file a petition for Certiorari to the U.S. Supreme Court, on whether the U.S. Declaration of Independence pursuit of happiness clause would support a right of medical patient to use medical Cannabis in his/her own home for palliative adjunct care? It is my vague recollection that the United States Supreme Court has NEVER addressed the definition of "happiness" within the U.S. Declaration of Independence. In addition, whether the U.S. Declaration of Independence is enforceable at all!!
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