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While many will cite Raich v. Gonzales as the definitive medical marijuana court opinion, the annals of the Alaska Supreme Court contain a judicial decision which is, in my opinion, a far wiser look at the issue. Chief Justice Rabinowitz demolishes the government's position on marijuana in this opinion which I believe should be required reading for advocates looking to reframe the legal thoughts surrounding marijuana.

In 1973 Irwin Ravin refused to sign a traffic citation and got himself arrested while knowingly possessing a small amount of marijuana. The arrest was a plot by Ravin and fellow attorneys to bring a test case challenging the harsh Alaska marijuana laws. NORML footed the bill for the case as part of their nationwide push for marijuana reform. The decision by the Alaska Supreme Court not only created a possibly permanent protection for private marijuana possession and opened the door for the Alaska Medical Marijuana Act; it still stands today as one of the most finely articulated explanations of the constitutional right to privacy and how it ought to relate to marijuana.

Helping Ravin’s claim that the prohibition of marijuana violated his right to privacy was the fact that the Alaska constitution, unlike the federal Bill of Rights, contains an explicitly stated “right to privacy.” Article 1, section 22 states:

“The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”

However, before getting to this part of the case, Alaska Supreme Court Chief Justice Rabinowitz set out the reasons why the federal prohibition of marijuana possession was itself suspect since private, at home use fell into a “Zone of Privacy” that the US Supreme Court has recognized because "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." In the decision Rabinowitz wrote:

“This leads us to a more detailed examination of the right to privacy and the relevancy of where the right is exercised. At one end of the scale of the scope of the right to privacy is possession or ingestion in the individual's home. If there is any area of human activity to which a right to privacy pertains more than any other, it is the home. The importance of the home has been amply demonstrated in constitutional law.

Among the enumerated rights in the federal Bill of Rights are the guarantee against quartering of troops in a private house in peacetime (Third Amendment) and the right to be "secure in their . . . . houses . . . . against unreasonable searches and seizures . . . ." (Fourth Amendment). The First Amendment has been held to protect the right to "privacy and freedom of association in the home."  The Fifth Amendment has been described as providing protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." The protection of the right to receive birth control information in Griswold was predicated on the sanctity of the marriage relationship and the harm to this fundamental area of privacy if police were allowed to "search the sacred precincts of marital bedrooms." And in Stanley v. Georgia, the Court emphasized the home as the situs of protected "private activities."

The right to receive information and ideas was found in Stanley to take on an added dimension precisely because it was a prosecution for possession in the home: "For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." In a later case, the Supreme Court noted that Stanley was not based on the notion that the obscene matter was itself protected by a constitutional penumbra of privacy, but rather was a "reaffirmation that 'a man's home is his castle.'" At the same time the Court noted, "the Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education." And as the Supreme Court pointed out, there exists a "myriad" of activities which may be lawfully conducted within the privacy and confines of the home, but may be prohibited in public.”

In looking at the Alaska marijuana laws of the time, the court determined that the state had failed to show that marijuana was dangerous or harmful enough grant a compelling interest in the ban of private use.

“Thus we conclude that no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual's home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.”

The decision ultimately legalized marijuana possession of up to 4 ounces, which was later reduced to 1 ounce. The effect of the precedent has been so strong that although a 2006 law prohibited possession of any amount that was not medical marijuana, there are no actual criminal penalties for possession under 1 ounce and authorities are very tolerant towards private use. With such permissive attitudes, might Alaska cruise to full legalization in the near future? It is certainly not an inconceivable proposition.
In 1998, the Alaska Medical Marijuana Act established a registration system for Alaska medical marijuana patients. The law allows patients or a designated care-giver to grow up to 6 plants and posses up to an ounce at a time. The law however does not authorize marijuana dispensaries and is unclear about the services a care-giver can legally provide. Thus it is up to medical marijuana patients to get a marijuana doctor’s recommendation, register with the Alaska medical marijuana registry and then grow their own marijuana.

As for Irwin Ravin himself, he ended up retiring and becoming a cab driver in the town of Homer, Alaska. He continued however to advocate for Alaska marijuana legalization and Alaska medical marijuana until his death in 2010. Those who knew him remember a staunch defender of civil liberties and a fierce fighter against excessive government intrusion into private life. During the 1990 battle to recriminalize marijuana, Ravin powerfully summed up his beliefs saying:

"There are two kinds of people in the world. Those who like freedom and appreciate their liberties and those who think they know what's good for everyone else and want to impose their wills."

Originally posted at 420petition

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Comment Preferences

  •  Alaska Ruined? (7+ / 0-)

    You'd expect that the permissive marijuana laws have led to real social problems in Alaska if marijuana is indeed dangerous. To find out I googled "Alaska Marijuana Problem" looking for stories about the bad consequences that ensued from allowing Alaskans to possess marijuana for personal use without penalty.

    Here's what I found:


    So I tried googling "Alaska Marijuana Deaths" and did find that people who smoke marijuana have died but there aren't any (credible) reports that any have died because they smoked marijuana.  I also came across the National Registry of Marijuana Deaths but there are zero victims listed.

    It seems Alaska doesn't have a problem at all due to its soft stance on marijuana. Now it's time for other states to follow Alaska's lead.

  •  I find it outrageous that the government should (9+ / 0-)

    have the power to regulate our internal neurochemical states.

    Talk about an invasion of privacy.

    In a society that does not offer adequate health care, citizens should have the right to self-medicate our our ailments, with natural herbs, we might grow or discover in our own yards, or in nature.

    No commerce involved.

    What constitutional basis should the federal government have the power to intervene?

    The means is the ends in the process of becoming. - Mahatma Gandhi

    by HoundDog on Tue May 17, 2011 at 05:20:36 PM PDT

    •  This is such an important point (5+ / 0-)
      Recommended by:
      Cedwyn, Paul Ferguson, jacey, HoundDog, BYw

      Our bodies are the most private thing we have. There is no commerce involved in the actual intake of substances so for government to step in and regulate this is such a blatant over-reach of constitutional powers it is mind-boggling at times

      •  Thanks for making this connection, Gr33nerPastures (1+ / 0-)
        Recommended by:

        It saddens me that our legalization of marijuana efforts to not get more respect and support from women, who we help support, and based on the Roe v Wade rights to privacy, giving them control over their own bodies.

        And, also, more respect and support from the GLBT communities, also based on our support for them, and the 2003 Lawrence, (or was it Griswald) v Texas, that used the right of privacy to outlaw laws against sodomy.

        A lot of folks here, in the Democratic Party, and throughout society, do not really respect this issue, as much I a believe we should.

        Symbollically, and legally, it lies at a central core of the rights of indivuduals, verus the power of governments.

        With the continuing onslaughts against our Forth  Amendment rights, we also see the connection to the excess domestic intelligence authorized by FISA, Telecom Immunity, and the undebated extensions of the Patriot Act, by both Parties.

        For those willing to ingnore Benjamin Franklin's advice that those that are willing "to sacrifice a little freedom, and privacy, to get a little more security, will soon find themselves with neither."

        Also, we commonly here, that "if you are not guilty of terrorism, why should you care about domestic survellience."

        Well, 68 million people use Marijuana on occassion, making them, by definition, "criminals."  

        Undermining our social fabric, and social contract.  Which is serious shit, not just some "professional leftest-progressive-hyper-sensitivities."

        "Oh, look, isn't that cute,  the leftests are babling about marjuana legalization again.   When are they going to grow up, and get it?   Never!  ha, ha, I'll have another chablis."

        Also, all others who do not live up to the exact letter of the law, have to fear, being caught up in these vast domestic intelligence operations to which have unblinking allocated billions, and billions, so every state, can set up "intelligence-awareness" centers, so they can connect the dots.

        Individual rights should be one of our most precious core values in the United States, and many of our best states peoples and leaders get it.  But, sadly, even many Democrats are clueless, and consistently fail to provide leadership on this whole range of progressive issues, and values.

        The means is the ends in the process of becoming. - Mahatma Gandhi

        by HoundDog on Tue May 17, 2011 at 08:14:25 PM PDT

        [ Parent ]

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