Perspectives: Cannabis rules recall key high court cases

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The struggles that have been encountered by the recreational marijuana initiative have impeded implementation of the 2023 state law legalizing its purchase, sale, and use in most routine circumstances.

Those obstacles have included personnel setbacks, licensing delays, litigation, and other travails that have developed over the couple of years since the Legislature lifted the ban on retail sale and use of small amounts of cannabis.

But some of these obstacles have been overcome while others are still being addressed as the state finally began rolling out retail selling licenses last month.

As the process moves forward, local units of government are having their say on regulatory matters within their domains.

One illustration occurred late last year in St. Louis County, the state’s largest one in area, nearly 63,800 square miles. Right before Thanksgiving last November, the Duluth-based County Board of Commissioners, overseeing some 200,000 residents, imposed various restrictions on the infant cannabis business. Its action, which could form a template for other regulatory measures around the state, recalls landmark constitutional litigation regarding the scope of federal government authority and the measurement of distances from prohibited sites.

Retail restrictions

The commissioners’ regulation consists of a measure concerning proximity to schools, number of retail locations, and prohibited places of use, which may become a precedent for other governing entities as the newly authorized recreational marijuana industry develops.

Under the ordinance, a retail cannabis business cannot be located within 1,000 feet of a school. Nor can it be within 500 feet of licensed facilities for day care, residential treatment facilities, or a public park.

Additionally, the measure requires county approval for a single retailer for each 2,500 residents, which amounts to three of them in areas where county zoning laws exist, outside the city of Duluth, which houses slightly more than 40% of the county’s residents.

The ordinance, which went into effect at the beginning of this month, supplements state protocols that ban the substance on government property, public parks, and within areas where tobacco smoking is banned.

“Make the most you can out of the Indian hemp seed and sow it everywhere.”
George Washington, first U.S. president

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“Marijuana is probably the most dangerous drug in America today.”
Ronald Reagan, 40th U.S. president

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“I don’t think pot is more dangerous than alcohol.”
Barack Obama, 44th U.S. president

School suit

The county’s proscription comes on the 30th anniversary this year of a ruling by the U.S. Supreme Court invalidating a similar 1,000-foot ban that became a seminal case in the annals of the law. In a criminal lawsuit titled U.S. v. Lopez, 514 U.S. 519 (1995), the justices struck down a law enacted five years earlier by Congress, the 1990 Gun Free School Zone Act, which prohibited possession of a firearm within 1,000 feet of any public, private or parochial school.

The high court held, in a 5-4 decision, that the measure was invalid because it exceeded the authority of Congress under the constitutional provision granting it power over “commerce between the states,” known as the Interstate Commerce Clause. Writing for a narrow 5-4 majority, Chief Justice William Rehnquist reasoned that the federal law exceeded congressional power because it did not pertain to an activity linked to “commerce” within the purview of the interstate commerce provision, but was a “non-economic” criminal regulatory matter that is subject to local control and legislation, rather than federal authority.

‘Rights’ rulings

The Lopez case was the first occasion in a half-century that the justices had invalidated a congressional action under the Interstate Commerce Clause. It was, in effect, a “states’ rights” ruling concerning state sovereignty, a doctrine that has played a significant role in other high-profile litigation before the Supreme Court over the years.

In the Civil Rights Era of the 1950s-1960s, the precept was raised by opponents of federal laws and other actions aimed at desegregation and prevention of racial discrimination. However, it was repeatedly rejected by the Supreme Court, notably in unanimously upholding the groundbreaking 1964 Civil Rights Act against constitutional challenge that same year in a case titled Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 1241 (1964).

The “states’ rights” or sovereignty doctrine in the Lopez case forbidding firearms near schools resurfaced five years later in another important case, a decision invalidating the key portion of the Violence Against Women Act, a measure allowing victims of gender-based violence and wrongdoing to sue their perpetrators in civil lawsuits in federal court.

In 2000, the Supreme Court, in another 5-4 ruling written by the chief justice in U.S. v. Morrison, applied the reasoning of the Lopez case to deem the anti-violence law invalid because it did not apply to commercial “economic” actions but was subject to state jurisdiction, primarily family law proceedings.

After appeals

The revised law was upheld as constitutional by the 8th U.S. Circuit Court of Appeals in a 1999 case, U.S. v. Danks, 221 F.3d 1037 (1999) (per curiam). In subsequent litigation, the 9th U.S. Circuit Court of Appeals in Wolford v. Lopez, 125 F.4th 1230 (9th Cir. 2025), the court devised different boundaries for where firearms may be promoted or must be allowed.

Efforts by Republicans in Congress to repeal the amended law have been unsuccessful, leaving it in place at the federal level, while many states, including Minnesota, have their own similar restrictive laws on firearms-in-or-near schools and other public places, which are not subject to the interstate commerce proscription.

But the civil lawsuit provision of the Federal Violence Against Women law, invalidated in Morrison in light of the earlier Lopez case, has not been amended or re-enacted and remains dormant as to civil lawsuits, while other provisions of the measure remain in effect, including federal funding of anti-violence programs, which may be a candidate for slashing in the Elon Musk-Vivek Ramaswamy $2 trillion cost-cutting initiative through their “Department of Government Efficiency.”

The cannabis restrictions imposed in St. Louis County are not subject to the federal jurisdictional issues that doomed the original 1,000-foot Gun-Free School law. But in the litigious society of today, other legal challenges may be mounted to it.

Celebrity concerns

While politicians, lawyers, and judges tangle with cannabis concerns, including in St. Louis County, some celebrities have weighed in with a favorable view of the substance, which singer-actor Lady Gaga extols because “if I need some clarity, I smoke a joint.”

While the restrictions on sites of sales and use of small amounts of marijuana is subject to regulatory restrictions, it no longer constitutes a criminal offense in Minnesota for limited consumption in accordance with the new state law, although federal law prohibitions remain in effect.

The Minnesota rollback of criminality alleviates the concern expressed by another thespian, Bill Murray, an occasional visitor here to watch the St. Paul Saints baseball club in which he has had a minority ownership interest. As he once pointed out, “the most dangerous thing about weed is getting caught with it,” a threat largely eliminated here in Minnesota and the many other jurisdictions that have lifted most criminal sanctions regarding recreational cannabis.

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PERSPECTIVE POINTERS

More Marijuana Matters

States where legal for medical use: 38 + District of Columbia

States where legal for recreational use: 24 + District of Columbia

First state to legalize for recreation: Colorado, 2014, nine years before Minnesota

Most annual revenue: California, $5.1 billion in 2023

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick, Linder & Robbins. 

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