McFreedom

Larry Solum replies to my ideas on Stewart and homegrown marijuana. He provides interesting background on Wickard I was unaware of, arguing that it would make that case inapplicable in a hypothetical medical marijuana case. I do not know the relevant law well enough to argue and certainly defer to his knowledge. Finally, he suggests:

Clearly, the rationale of Wickard, as limited by Morrison and Lopez does apply to the sale of marijuana seeds. It is not so clear that it would extend to gifts of homegrown seeds. But the main point is the power to prohibit the distribution of seeds is not the same as the power to prohibit possession and use. And because the power is not the same, the statutory provisions under which defendants could constitutionally be prosecution (or enjoined) is not the same.

Gene Hoffman suggested this to me separately, in conversation. I think this is a fascinating idea, and not just in this context. Marijuana seeds are small enough (and presumably easy enough to produce) that one could certainly conceive of a "Johnny Potseed" distributing marijuana seeds for free in states which did not outlaw their ownership. Is there some non-commerce clause justification for Federal jurisdiction in this matter? And is there any case-law on the idea that giving things away is, by definition, not commerce?

This brings to mind an intriguing future in which machine guns may be owned by ordinary citizens - if self manufactured - and in which marijuana may be grown by ordinary citizens. Since states would still be free to outlaw these activities (barring any Supreme Court decision applying the 2nd to the states via the 14th, of course), I rather suspect that there would be states in which one could grow marijuana (granted a gift of seeds from a passing stranger), and states in which one could make a machine gun, but very few states in which one could do both.

As interesting as these questions are, it really causes me to wonder about the underpinnings of a lot of technological restrictions. For example, the most notorious of these is the Digital millennium Copyright Act, which states, among other things, "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component or part thereof that...is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." I've always read this as implying that, if I wanted to create something that cracked DVDs myself, I could, but I couldn't share it with anyone. Is this clause in the DMCA based in the Commerce Clause, or in the grant of copyright control? The law does not clearly state. However, if the above logic about giving away seeds is correct, and the DMCA anti-circumvention provisions are based in Commerce Clause authority, what is to prevent me (other than technical ability) from writing a computer program which cracks Apple's iTunes format and distributing that for free?

Obviously, I'd like the answer to be "nothing," but I suppose only time (and the courts) will tell.