norml21 - Page 85
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Clear that the Right to Possess Marijuana, Regardless
of One's Intent, is an Individual Liberty Not Affecting
the Rights of Others Nor Doing }{arm to Other Persons,
and That Therefore the Presumption of Constitutionality
of 21 UoSoCo §841(a)(i) Must Fall and the Burden Shifts
to the Government to Justify the Infringement of That
Right by a Corapelling State Interest°
Utilizing the analytical steps to apply the Mill's standard
contained in Section IV A, supra, it should be clear that the
right to possess marijuana regardless of intent is neither
protected by any provision of the Constitution nor prohibited by
it. Of courser the interstate transportation and sale of the
drug could properly be regulated in economic and commercial ways
under Article I, Section 8 of the United States Constitutionl as
can any other substance or activity which affects interstate
commerce. However, the Commerce Clause cannot logically be
construed to prohibit the mere possession with intent to
distribute marijuana outright° Consequently, possession with
intent to distribute may be an activity which lies within the
ambit of the Ninth Amendment as a right retained by the people.
Proceeding further in this anaiysisr it also becomes clear
that possession with intent to distribute such a relatively
harmless substance as marijuana neither infringes upon anyone
else's constitutionally protected rights, nor endangers the
evident good of the con_unity. An activity such as possession
which affects no one beyond the person or persons doing the
possessing can hardly be said to infringe on another person_s
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