What Marijuana Legalization Lacks

The states of Washington and Colorado have gone farther on fighting against the drug war than other states have. Instead of merely legalizing medicinal marijuana, voters in those states have legalized marijuana. It does not matter if it is medicinal or recreational, it is legalized. Officials in the Justice Department are already figuring out what to do about this, how to enforce federal law in spite of the wishes of the voters. Elected officials in those states appear poised to cooperate with the Department of Justice.

This is, sadly, the fate of most marijuana legalization bills, whether medicinal or general. Federal lawyers argue in front of federal judges that the federal government’s drug policy preempts state drug legalization efforts, and the local police then cooperate on enforcing federal law when in the past they enforced both federal and state law.

There is one state where this is different. The statute in question isn’t a drug law, although it is a law where a state has asserted preemptive powers over the federal government through the tenth amendment. This would be Montana, and the subject of the dispute is in gun rights. While the law is winding its way through the court system, so far the Bureau of Alcohol, Tobacco, and Firearms has not interfered in the state.

What made the state law special was a clause that instructed police to arrest federal officials attempting to enforce federal laws on those firearms covered by the state law.

That clause should be strengthened. Not only should the police be instructed to arrest, the district attorneys in the state shall be instructed to try the case and to not drop charges, the state judges should be instructed to deny any arguments based on federal preemption or immunity, and the law should include mandatory minimum sentences.

This clause is more likely to happen on firearms legislation than on marijuana legislation, which is unfortunate because it is needed in both. Libertarians cannot carry the whole burden of getting these initiatives to the ballot, and therefore need allies. Those who advocate firearm liberty are more likely to be friendly to tenth amendment arguments than are those who advocate marijuana liberty, even though both are making the same tenth amendment argument.

It is therefore unlikely that a marijuana legalization ballot initiative will have a shall arrest state supremacy clause, which is unfortunate because that is exactly what those initiatives need. If enough drug warriors are put in cells with the same drug users they helped to arrest, it might actually cause them to rethink the drug war as a whole, and it would become a true turning point in the war on drugs.