I have a post up over at Objective Justice that briefly describes the reasoning of the Court in the majority opinion. I don't want to repeat that here, but I do want to ask the same questions here as I did there:
I'd like to note that one things strike me as surprisingly absent in the discussion of the Raich opinion:
In Raich, the Constitutional right of medical necessity was not considered because it wasn't addressed by the 9th Circuit. I'm not advocating that the Justices should have ruled on this technically unadressable factor, but it does leave some room for rumination. If the 9th Circuit had found a Constitutional right to marijuana for medicinal purposes, would strict scrutiny have been applied? If strict scrutiny was applied, would the federal government lose this case?
Even if you can think of no way in which a Constitutional right could have been developed in the Raich case, there is no reason to believe that it won't come up in the future. So, when you hear or see someone say that this is the end of the medicinal marijuana argument, guess again.
Anyone who has any pointers as to why strict scrutiny could not be applied, or why the federal government would still win the case if it was applied, please leave some comments.
Also, my post the other day relating to dispute over the economic effect of medicinal marijuana becomes completely moot under a rational basis test. The fact that the economy would be changed in one-way or another, (which everyone seems to agree on), puts medicinal marijuana squarely under the authority of the Commerce Clause.
[Update: Medical necessity is not a defense as shown by the opinion in UNITED STATES v. OAKLAND CANNABIS BUYERS’ COOPERATIVE et al. That doesn't mean, however, that there isn't a defense that could require strict scrutiny.]