Tag: constitutional rights

George Washington’s Whisky Distillery, 21st Century Edition

You might think the laws of King Edward I of England (1239-1307), George Washington’s whisky distillery, and an 1807 “Treatise on the Law of Idiocy and Lunacy” have little to do with the federal criminal code of 2024. And you might think they have even less to do with contemporary federal regulation of cannabis. But the Supreme Court’s test for the Second Amendment right to keep and bear arms requires litigants and courts to become historians scouring the archives. So, the U.S. Court of Appeals for the Fifth Circuit recently held a federal criminal statute barring unlawful users of controlled substances from possessing firearms and ammunition, 18 U.S.C. § 922(g)(3), was unconstitutional as applied. The government’s prosecution of a “non-violent, marijuana smoking gunowner” was dismissed (United States v. Connelly, — F.4th — (5th Cir. 2024).

Those intrigued by the ins and outs of historical firearms regulations, and the back and forth between the Supreme Court and Fifth Circuit on that issue, can study the court’s opinion. The facts, however, were straightforward and seemingly commonplace. The defendant “would at times smoke marijuana as a sleep aid and for anxiety.” So do countless Americans, in full compliance with applicable state laws allowing just such uses. The defendant owned a firearm. Again, nothing remarkable there. Yet federal officials charged the defendant with violating criminal law. The Fifth Circuit put an end to the prosecution, as it did in a similar case last year, United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), vacated, 144 S. Ct. 2707 (2024) (for reconsideration in the light of United States v. Rahimi, 144 S. Ct. 1889 (2024)), which we discussed last year here.

Three takeaways stand out for the industry:

1. The federal classification of cannabis does not trump constitutional rights.

Noticeably absent from the Fifth Circuit’s reasoning was any deference to the federal scheduling of cannabis as a controlled substance. That may be due to the unique historical test applicable to the Second Amendment. Still, the opinion shows the Constitution has no cannabis exception. Judicial statements like “[m]arijuana user or not,” the defendant “is a member of our political community and thus” has constitutional rights are a welcome change in emphasis. When facing an enforcement challenge, industry participants should evaluate constitutional challenges they may have. The Constitution may just win the day.

2. Analogies to regulation of alcohol carried more weight than analogies to other regulatory schemes.

The government tried to analogize cannabis users to several regulatory schemes, including a tenuous (at best) analogy to mental health. Nothing doing there. The Fifth Circuit instead analogized to alcohol regulation, concluding that both alcohol and cannabis can cause a temporary, potentially “impairing influence.” So, just as the federal government does not charge firearms owners with violating 18 U.S.C. § 922(g)(3) because they occasionally consume alcohol, the government could not prosecute the defendant because she occasionally consumed cannabis.

This decision suggests that future enforcement targets might find success in analogizing cannabis to alcohol. Subject to appropriate regulatory control and responsible personal use, alcohol consumption is an accepted part of American society. Indeed, as the Fifth Circuit took pains to note, American acceptance of alcohol consumption dates to the colonial period. Just ask George Washington. And it’s still going strong today. Manufacturers and distributors of alcoholic beverages can advertise their products widely — watch the Super Bowl — and they benefit from access to the banking system, stock market, and other financial opportunities closed to the cannabis industry. Situating the cannabis industry in that established history may help show that cannabis should follow a similar pattern. And it may call into question differential regulatory treatment of the two industries.

3. Supposed “dangerousness” cannot justify treating cannabis differently.

The Fifth Circuit declined the government’s invitations to analogize cannabis users to “dangerous” persons, like political traitors, whom the Constitution might permit disarming. That is, of course, a marked shift from the historical justification for the federal ban on cannabis — a supposed propensity to “incite[] violent crimes,” that modern medicine shows is false.

Rejecting the supposed “dangerousness” of occasional cannabis users furthers questions about whether prohibitions on cannabis serve a legitimate purpose. Recall Justice Clarence Thomas’s 2021 statement questioning the federal approach as a contradictory and unstable “half-in, half-out regime” that “strains basic principles of federalism and conceals traps for the unwary” (Standing Akimbo, LLC v. United States, 594 U.S. 2236 (2021) (Thomas, J., statement respecting denial of certiorari)). As more courts reject federal attempts to treat cannabis users differently from other citizens, future litigants may consider asserting constitutional due process or equal protection challenges to regulations. After all, as Connelly shows, courts stand ready to vindicate constitutional rights, “[m]arijunana user or not.”

© 2024 Bradley Arant Boult Cummings LLP
For more on Cannabis Regulations, visit the NLR Biotech Food Drug section

Coronavirus and the Constitutional Rights of Businesses: Butler v. Wolf

In Butler v. Wolf, Judge Stickman of the Western District of Pennsylvania issued an important ruling on Pennsylvania Governor Wolf’s coronavirus lockdown orders which impacts the Governor’s ability to re-impose some of the more draconian restrictions that he, and governors in New York, New Jersey, and elsewhere, put in place between March and June. Whether or not you agree with the result from a political standpoint, the decision is a must-read for anyone interested in the constitutionality of the ongoing, and unprecedented, government intervention in citizens’ daily lives in response to the coronavirus pandemic. Judge Stickman’s ruling touches on many civil liberties, including the First Amendment’s right to assemble, as well as the Fourteenth Amendment’s protection of the right to travel, the right to leave one’s home for any reason or no reason, the right to support oneself by pursuing a chosen occupation, and other rights.

This firm has litigated the constitutional rights of businesses —particularly the Fourteenth Amendment right to due process—on behalf of its clients, and readers of this blog will be most interested in Judge Stickman’s ruling that the orders shutting down non “life sustaining” businesses violated businesses’ rights to due process and equal protection under the Fourteenth Amendment. “An economy is not a machine that can be shut down and restarted at will by government. It is an organic system made up of free people,” and “[t]he ability to support oneself is essential to free people in a free economy.” Small businesses should also take comfort in this ruling, which prohibits the re-imposition of blanket closures of all businesses.

The Ruling

The plaintiffs in Butler v. Wolf included small businesses that sold furniture and health and beauty products; these businesses were shut down by the Governor’s orders, while Walmart, Lowes, and The Home Depot stayed open and sold the exact same products. The judge found that the lockdown orders unfairly favored these big-box retailers over the plaintiff small businesses because it “treated these retailers differently than their larger competitors, which were permitted to remain open and continue offering the same products that Plaintiffs were forbidden from selling.” The court noted it was “paradoxical that in an effort to keep people apart, [the Governor’s] business closure orders permitted to remain in business the largest retailers with the highest occupancy limits.” The Governor’s order, therefore, was not rationally related to combatting the virus, because closing a small furniture store “did not keep at home a consumer looking to buy a new chair or lamp, it just sent him to Walmart.” “In fact, while attempting to limit interactions, the arbitrary method of distinction used by [the Governor] almost universally favored businesses which offered more, rather than fewer products,” and which also, therefore “attract large crowds.”

Because the business closures treated two types of businesses differently, and that different treatment did not actually accomplish the stated goal of limiting interpersonal interactions to combat the virus, Judge Stickman found the lockdown order violated the Equal Protection Clause of the Fourteenth Amendment. Right now, this ruling applies only in the Western District of Pennsylvania (Pittsburgh and its surrounding areas), but once Judge Stickman’s ruling is appealed to the Third Circuit, the decision of that court (whether they agree with Judge Stickman or overrule him), will become binding in New Jersey, all of Pennsylvania, and Delaware.

The Big Picture

The ruling issued on September 14, 2020, only a few days shy of the 233rd anniversary of the founding fathers’ signing of the Constitution on September 17, 1787. It is fitting that the Judge wrote a lengthy and well-written opinion reminding us of the importance of the rule of law, and role of courts, even in times of crisis. As he stated, “[t]he liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble. . . . Rather, the Constitution sets certain lines that may not be crossed, even in an emergency.” Anticipating what will most certainly be many peoples’ reactions to the ruling—i.e., that we must do whatever it takes to protect ourselves from the virus—the Judge wrote:

[G]ood intentions toward a laudable end are not alone enough to uphold government action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good—especially in a time of emergency. In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions—while expedient in the face of an emergency situation—may persist long after immediate danger has passed.

As this author said in March, people following China’s response to the outbreak would have seen references to the idea that a democracy, like the United States, could not impose such severe restrictions on its own citizens. Then governors here did impose extreme restrictions as the virus spread and have openly stated that these restrictions will become the “new normal.” Judge Stickman noted the incongruity created by states adopting the same approach as China: “[i]t appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens.” But, the Judge found, “the Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.” That is why, as this author also predicted in March, the constitutionality of restrictions here, unlike in China, will be subject to judicial review if and when they go too far. Judge Stickman’s ruling in Butler v. Wolf came in one of the many cases now winding their way through the courts raising these exact types of challenges.

Nothing is certain, but it is likely that this case, and others like it, limit future “blanket” type orders, and force governments to take a more nuanced approach to combatting the virus (which includes deeper consideration of constitutional freedoms). Businesses trying to navigate the uncertainty created by government orders that have been ruled unconstitutional should consult experienced attorneys.

©2020 Norris McLaughlin P.A., All Rights Reserved
For more articles on COVID-19, visit the National Law Review Coronavirus News section.