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.

California Proposition 19

When discussing voting, the point was made that there is a good side and a bad side to every ballot proposition. That is actually an exaggeration, as some ballot propositions are procedural and have no impact on individual liberty. Examples of this are California's 2010 propositions 20 and 27 which address redistricting, which the Libertarian Party of California has taken no position on.

Then there are complex measures, which have positive features and negative features. Those require more careful analysis, to determine whether the overall effect of the proposition is more beneficial than harmful. An example of that is Proposition 19, which has caused debate in libertarian circles.

Of course the purist argument is that "legalize it and tax it" contains three unnecessary words, that all that should be needed is "legalize it." In a perfect world a simple "legalize it" would be on the ballot, but the absence of a perfect proposition shouldn’t deter people from analyzing whether Proposition 19 is worth voting for.

So is Proposition 19 more beneficial than baleful?

According to Ballotpedia if Proposition 19 passes then the laws are greatly loosened. Persons over the age of 21 will be able to grow and possess small amounts of marijuana.

It does not address federal activities, and it is theoretically possible that local police could ignore this law by working with federal law enforcement. An unnoticed criticism of Proposition 19 is that, like 10th Amendment resolutions, it lacks teeth. Many police and district attorneys are against Proposition 19, and while they will be unable to directly act against small marijuana users they can always encourage cooperation with the DEA.

Overall though it is a step in the right direction. Not a full step, not a perfect step, but definitely in the right direction. Given how few steps there are in any good direction, this is definitely worth supporting.

Tenth Amendment Resolutions

Many states are passing state sovereignty resolutions. Some, usually considered more "blue", are passing resolutions legalizing marijuana, usually for medicinal purposes but sometimes going as far as outright legalization. Others, usually considered more "red", are passing resolutions exempting citizens of that state from the insurance mandate included in the health care "reform" recently passed.

The problem is that at this point these resolutions are symbolic. While these resolutions will be challenged in federal courts (at which point the federal government will likely rule in its own favor) these resolutions lack any enforcement mechanism. The only resolutions that have any actual impact are the ones that prohibit a state from participating in REAL ID or PASS ID on the grounds that the state simply refuses to spend the money to comply with federal standards.

What, in any of these resolutions, will stop the DEA for the ATF from enforcing federal law on the citizens of states allegedly protected by these tenth amendment resolutions? Based on the continuing arrests of medicinal marijuana patients in California, apparently nothing. These resolutions lack an enforcement mechanism.

A better resolution would not only nullify the federal law in question - it would mandate that the state and local police not cooperate under any circumstances with the federal agency corresponding to the law in question, up to including punishments for police that do so. An even better resolution would mandate that the police arrest and the district attorneys file charges against federal agents for violating the rights of citizens of the state, and forbid transfer of these federal agents into federal custody.

It is absolutely certain that the federal government will attempt to challenge these laws. The question is how effective that would be. Any state legislature that has the courage to pass a nullification resolution with an enforcement mechanism would also have the courage to refuse to hand over any federal DEA or ATF agents. To get these agents would require an armed assault on the state prison system. To arrest politicians who stand up to the federal government would also require an armed assault. Will the federal government go that far?

This is not without precedent though. The State of Massachusetts nullified the Fugitive Slave Act before the civil war. The Fugitive Slave Act said that anyone who kidnaps a runaway slave is protected from prosecution but anyone who protects a runaway slave would be tried for violating the act. The nullification act passed by Massachusetts reversed the Fugitive Slave Act so that anyone who kidnapped a runaway slave would be tried and anyone who protected a runaway slave would be protected.

It is impossible, absent calling out the military, for the federal government to enforce laws that the state absolutely refuses to enforce. That's why nullification works, and why a nullification act with an enforcement mechanism is necessary.