Kalash,
1) Is it a "taking" if the state prohibits possession of a substance or property before you come into possession of it?
Answer: No. It's not a taking.
It is a "taking" if one is deprived of their property in whole. Prohibition on possession AND distribution AND use is a taking - and as a legislative act, it is unconstitutional and can be ignored with impunity. Time does not mend the unconstitutionality of the enactment.
There is no "prohibition" prior to coming into possession as the law, itself, is invalid for amounting to a "taking" of property to begin with. A law, once ruled Unconstitutional (and in my mind, there's no question. Comparison with caselaw is one thing. Comparison to the Constitution is quite another, and there is no manner in which the CSA can be held up to the Constitution) is invalid ab initio - from the beginning.
It cannot make drugs NOW illegal because they were not "taken" - the law was invalid from the date of its enactment - void. Anything criminalized under that law is not truly criminalized, and seizing it remains a "taking."
The relevant question is, "Can congress enact a law which amounts to a 'taking' without compensating the owners for the property they own and possess?"
Can Congress enact a law which is in violation of Federal Statute - by creating threats of violence and use of actual violence to prevent a commodity from moving in commerce through both extortion and robbery? (Title 18 Chapter 95 Section 1983)
If so - then the Constitution is meaningless, rights are not inherent in the people, and the U.S. Government is a complete sham, without any source of authority other than its own word (much like our money supply), and we are an oppressed people without any freedoms, liberties, nor rights.
2) Raich actually found that even the right to possess marijuana for medical purposes is not a fundamental right protected by the Constitution. So you can imagine how much less sympathetic a court will be when you claim that there is a right to possess and sell MDMA for commercial purposes.
There is no right to possess anything which originates from a license, as a license is a grant of permission.
There is no RIGHT to medical marijuana (it does not HAVE TO BE PROVIDED TO YOU), and there is no RIGHT to possess and distribute MDMA which is inherent in the people.
I agree 100%
Rights of possession, distribution, and use are inherent in ownership - and unless ownership is taken through due process or just compensation, rights of ownership cannot be taken by Government without consent of the owner.
Raich's findings are not relevant in this matter - all the court determined with force of law is that the Supremacy Clause of the Constitution is to be upheld when there is a conflict between the laws of the states and the laws of the nation... If the state issues a "privilege" to a person in violation of Federal law, that privilege is void from the time it is granted, as the state cannot supersede Federal Law.
That's it.
Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
But that was the only issue raised.
The rest of the bantering and additional wordiness of the ruling is not a replacement for the Constitution, nor does it address the issues being raised in a manner consistent with due process.
They are tangents, sidetracks to the issue, and hold no force of law. The Constitution cannot be re-written by the Judiciary, and while they can discuss possible outcomes for hypothetical situations, the fact was they were determining if there was an ability - right or privilege - created under state law that could exist in violation of Federal Law.
But going back to Raich -
For the purposes of consolidating various drug laws into a comprehensive statute, providing meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels,
The CSA does not provide meaningful regulation over sources of drugs, nor does Congress have authority to determine what a legitimate source of drugs is. This is "regulation" of nature itself (particularly in regards to marijuana) is beyond Congressional authority.
Congress cannot determine that by nature of its source, an item is legitimate or otherwise unless there is a conflict with patent rights.
There can be no "diversion into illegal channels" as a rational for the creation of a law by which those "illegal channels" are created.
The CSA was created at a time when the only "illicit" channels of drugs were those done without proper documentation - in what was determined to be an avoidance of taxing statutes, while prohibition or discouraging use of drugs was held to be outside Government's authority.
I remain firm in
Nigro holding that regulation amounting to prohibition is beyond Congressional authority, whether subsequent court decisions have changed this or not, as the Constitution remains firm in what it says - its meaning does not change.
Legislating morality, without criminal consequences of the immoral acts, remains outside Congress's ability. "Illegitimate" - no medical - use of drugs was determined to exist, and Congress, fighting against the chains of the Constitution, created a taxing act with the intention of reducing use of drugs that they did not see as "legitimate." The ruling in
Nigro addressed this fact, and while it may have determined that the power to prohibit remained vested in the states, it was explicit in its statement that Congress could not prohibit through its delegated powers.
Legitimacy of use of property is not within Congress's power to determine - so long as that use does not create an issue with regards the rights of others - or the health and safety of the public, which necessarily would require an infringement upon a person's rights creating standing - as the public has no rights greater than those of its constituents.
The international issues at hand are relevant only because of Drug Treaties signed with foreign nations - and such treaties are invalid, as they undermine the liberty of the people, and no elected official has this authority vested in themselves as no person in America has the right to waive any rights of his neighbor.
http://www.jpands.org/hacienda/article4.html - such a treaty cannot be "the Law of the Land" as it is not enacted under the power of the United States, but in abrogation of the Law of the Land in an attempt to engage in powers outside those of the office of president or senator.
While Judicial review of practices of the legislature - and the executive - may create a source of "alternative authorities" for the actions the judiciary permits - these alternate sources of authority cannot and do not supersede the Constitution itself, as the Judiciary is a product of the Constitution - and is sworn to its protection above all else.
Even if the Judiciary does determine that Property is not a RIGHT protected in the Constitution, the language of the Constitution itself supersedes this position in the 1st - 5th amendments, the 9th, 10th, 14th, and others.
The "power to prohibit" was taken by Constitutional Amendment (the 18th) and subsequently returned to the States (21st).
That power cannot be exercised by Congress without an additional amendment changing The Law so that congress may prohibit without violating The Law. Or, our written Constitution is not the Supreme Law of the Land, but a mere piece of scrap paper, discarded without care by those that claim - when it suits them - that their authorities and powers flow from its pages.
While Legislative acts may amount to substantial due process, the 14th Amendment makes it clear that procedural due process must be granted to anyone prior to the loss of their property interests.
If one owns the materials necessary to create anything prohibited by Congressional mandate, they have lost their property interests without procedural due process.
If one has a vested interest in their ability to obtain, for a use they deem to be legitimate (particularly medically legitimate in the case of MDMA), and they attempt to stay the hand of Government and retain the RIGHT to possess and use that thing for a perceived benefit after knowing and weighing the risks, Government is taking a property interest (in money to be used for the purchase of that which Government claims to prohibit) from them without procedural due process.
I was nearly 4 when MDMA was prohibited. While you claim that I had no interest in the property at the time of its criminalization, I did have property interest in savings (held in my parents' accounts) which I still possess.
It is reasonable - at least it's no more unreasonable than the Government's position in "reducing transfer to illicit channels" when no illicit channels exist to which the drugs may be diverted - to claim that I had a property interest that I wish to exchange for MDMA that I have retained since before MDMA became illegal.
While this wouldn't amount to a "taking" as I would not be deprived of the actual money I hold in my possession, it's surely no more of a stretch than the processes involved validating the creation of the CSA through determining the CSA is the answer for the problems it creates.
