One of the more interesting aspects of the recent marijuana litigation in the Supreme Court’s original jurisdiction, is that it has revealed a very important and significant limitation on Gonzales v. Raich. As Randy Barnett (who argued the case) has cogently explained, the federal Controlled Substance Act in no way preempts states from ceasing to prohibit marijuana, as this would amount to unconstitutional commandeering.

In no way did it say or even imply that Congress had the power to compel state legislatures to exercise their police power to criminalize the possession of marijuana, or to maintain their previous legislation criminalizing such behavior. It certainly never hinted in its ruling that a congressional power to prohibit intrastate activity somehow required states to criminalize such behavior or “preempted” states from ceasing to prohibit it. Such a “preemption” theory is in direct conflict with the Supreme Court’s holdings in New York v. United States and Printz v. United States that Congress may not use its commerce or other powers to “commandeer” the sovereign power of state legislatures to enact laws, or to commandeer state executive branch officials to enforce federal law.

As Randy noted in a response to David Rivkin and Elizabeth Price Foley’s WSJ piece, the Executive’s decision to not enforce the CSA “may be a breach of the President’s duty to take care that the laws be faithfully executed,” (I think it is), but Colorado is not required to prohibit marijuana as does the federal government.

This argument is not limited to state drug laws. It also extends to state gun laws.

In Reason Magazine, Brian Doherty discusses an interesting extension of this doctrine. Two Colorado firearmiinstructors are planning a ballot initiative to amend Colorado law to allow people who use “legal” marijuana to carry a concealed weapon. This would seem to make sense, as marijuana is legal under state law for all other purposes. Why should it serve as a state bar to obtaining a concealed carry license, a fundamental constitutional right?

However, even if Colorado allows conceal carry permits to be granted to those who use marijuana, it will remain illegal under federal law.

The 1968 Gun Control Act declared in section 922(g) that unlawful users of, or those addicted to, a controlled substance can’t legally possess guns. As more and more Americans use marijuana, medically or recreationally, and legally under state law, the feds have more urgently stressed that point. In September 2011, the ATF issued a memo reminding federal firearms licensees there’s no exception to section 922(g). If they sell a gun to someone they know or reasonably suspect to be a marijuana user, even if that use is state-legal, the dealer is violating federal law. Gun purchasers must fill out a form from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in which they are legally compelled to truthfully answer: “Are you an unlawful user of, or addicted to, marijuana…or any other controlled substance?”

But there’s nothing wrong with that. Federal officials remain free to enforce federal laws, and people who use marijuana and possess a firearm do so at the (severe) risk of committing a federal felony. But the states need not be complicit. (Note, this does not affect the acquisition of a federal firearm, only conceal carrying one, which is purely a matter of state law).

There is some precedent for this. In 2011, the Oregon Supreme Court held that under the state’s “shall issue” law, a person who held a medicinal marijuana license could not be denied a permit (see here, here). The court rejected arguments that 922(g) preempted the state law. In short, while the state cannot deny a permit, federal officials remain able to enforce federal law.

A marijuana user’s possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials. …

But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.

The Sheriffs specifically cite Printz and the commandeering cases for the proposition that the states cannot be forced to implement federal law. The court rejects this argument.

In other words, the real thrust of the sheriffs’ argument appears to be that the state’s choice not to use its gun licensing mechanism to enforce the federal policy is preempted, even though the federal law that the sheriffs rely on does not in any way mandate the use of state gun licensing schemes in any particular way. One obvious problem with that position is that it presumes that Congress has authority that, in fact, it does not have. It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program. Printz v. United States, 521 US 898, 925-31, 117 S Ct 2365, 138 L Ed 2d 914 (1997); New York v. United States, 505 US 144, 161-69, 112 S Ct 2408, 120 L Ed 2d 120 (1992). Although the United States Constitution establishes the supremacy of the federal government in most respects, it reserves to the states certain powers that are at the core of state sovereignty. New York, 505 US at 156-61. One expression of that reservation of powers is the notion that Congress lacks authority “to require the states to govern according to Congress’s instructions.” Id. at 162.(8)

It follows from that “anti-commandeering” principle that Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose. If Congress lacks the constitutional authority to commandeer the state gun licensing statutes in that fashion, then we can hardly imply an intent to commandeer state gun licensing laws from a federal statute that does not even mention them. Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state’s decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.

Brian Doherty quotes from an Oregon Appeals Court decision that states the issue more clearly:

As an Oregon appeals court declared in one iteration of Willis v. Winters as it moved through the state’s court system, and as the Oregon Supreme Court upheld, the “circuit court correctly concluded that Oregon’s concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.”

The state petitioned for cert, based on preemption theory, asking ” Is the state law preempted to the extent it requires issuance of a license to a person who is otherwise comprehensively prohibited under federal law from possessing or acquiring a firearm by any means?” The Supreme Court denied cert.

This would seem to provide further support for the weakness of the argument that Colorado is obligated to comply with federal law.

Under the Obama Administration’s purported respect for federalism, and their decision not to enforce CSA violations in states that legalize marijuana, should we expect the DOJ to also waive prosecutions under 922(g). Doubtful.

ATF’s Colorado office didn’t respond to a request for comment on the proposed ballot measure by press time. But the mixture of pot and guns seems very likely to be too combustible for the feds to ignore, except, maybe, with a Rand Paul Justice Department and ATF, or a Ted Cruz one. Dave Workman of the Second Amendment Foundation (SAF), which has fought successful court battles to extend Second Amendment rights in the wake of Heller, is sure the Justice Department and ATF would crack down hard on any state that tried to ignore federal prohibitions on drug user’s gun possession.

In any event, it is for Congress, and not the President to decide to decline to enforce federal laws. Doherty reports on an effort to defund ATF enforcement of state-legal medical marijuana users.

On the legislative front, Sen. John Walsh (D-Mont.) proposed a bill amendment this year to defund Department of Justice and ATF attempts to enforce gun laws against state-legal medical marijuana users, but it failed.

This would be similar to efforts in the Cromnibus to not enforce marijuana prosecutions in states where it has been legalized.

The new Congress should get with the times, and recognize that those who use marijuana, especially in states where it is legal, should not be denied their Second Amendment rights. Or, this represents on area where fair-weather federalists let fear of marijuana trump the separation of powers.