MMJ Not “Fundamental Right” in Montana

On Tuesday, the [Montana State Supreme Court] held there is no fundamental right for the use of medical marijuana, or any drug that’s prohibited under federal law. In a 6-1 decision, the Montana Supreme Court reversed a lower court ruling that blocked enforcement of a state law to restrict access to medical marijuana.
“In pursuing one’s health, an individual has a fundamental right to obtain and reject medical treatment. But this right does not extend to give a give a fundamental right to use any drug, regardless of its legality,” Justice Michael Wheat wrote.

The court sent the decision back to the lower court, instructing it to use a “rational basis” instead of a “strict scrutiny” test to determine whether the law passes muster. The “Strict scrutiny” test places a heavier burden on a state to justify a law and requires a compelling state interest. A “rational basis” review is the lowest level of scrutiny a court can apply, and requires a law to be rationally related to a legitimate state interest.

James Goetz, attorney for the Montana Cannabis Industry Association and other plaintiffs, told the Missoulian that he intends to file an alternate argument under the rational basis test. “We will take that back to the District Court because this law is indeed not rational. I don’t see how any rational court could find this law rational,” he said.

However, before the district court gets to the issue, voters are likely to have their say. Medical marijuana supporters obtained enough signatures to place the 2011 law that restricted access on the November 2012 ballot as a referendum. In 2004, voters approved a measure to legalize marijuana use for medical reasons.

Even if voters support the measure to rescind the restrictions, the conflict between state and federal laws isn’t going away. In the majority opinion, Justice Wheat wrote: “Plaintiffs cannot seriously contend that they have a fundamental right to medical marijuana when it is still unequivocally illegal under the Controlled Substances Act.”
Well, sure, Justice Wheat, that’s exactly the contention.  And, as a fundamental right is more powerful, more legitimate, and more true than any act of a government . . .

Original source material is HERE.


[image:  Google images Montana]

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Author: DavidB

a heathen, but hopefully not an unenlightened one

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