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21 Geo. J.L. & Pub. Pol'y 559 (2023)
Into the Weeds of the Third Amendment: Constitutional Protections for At-Home Marijuana Use

handle is hein.journals/geojlap21 and id is 563 raw text is: NOTES Into the Weeds of the Third Amendment: Constitutional Protections for At-Home Marijuana Use JAMES BERNSTEIN* ABSTRACT The text of the Constitution sets up a series of checks countering the over- growth of the State's power. The Bill of Rights follows in a similar vein; the principles of these amendments outline citizen-counters to the potentially tyran- nical reach of the government. While the Third Amendment has lacked many advocates to date, I believe it has modern applications. Using the original public meaning of the amendment, this Note argues that while the Third Amendment deals particularly with the quartering of soldiers, it also acts as a restraint on government by restricting the state's presence in one's home. Specifically, I argue that the Third Amendment provides constitutional pro- tection for individuals to grow and consume marijuana within their homes. This does not mean that the government may not regulate any marijuana use; rather, in these narrow circumstances-instances in which marijuana is grown and subsequently used within one's home-the state lacks an invitation to intervene in private life. To substantiate this view, I examine historical sources. These illustrate the circumstances surrounding the adoption of the Third Amendment and its intended function. I then analyze two relatively recent Supreme Court decisions, Kyllo v. United States and Gonzales v. Raich. These cases both dealt with mari- juana grown in homes. However, as I will attempt to describe, the facts of the latter case would lead to a very different outcome in light of this newly pro- posed interpretation of the Third Amendment. TABLE OF CONTENTS I. INTRODUCTION ...................................... 560 * B.A., Columbia University; J.D., Georgetown University Law Center. I'm so thankful for the many people who made this possible. To my friends Sam Adler, Mike Nisper, Matthew Schaefer and Justin Winas who helped turn our amusement with the Third Amendment into a paper. To my brother, Josh, who reminds me to love the law with every conversation. And to Begonia El Koury who managed to edit this all the way from Scotland. My thanks, most of all, to my parents, who encourage me to write every idea down no matter how outlandish any one may seem. Lastly, all my gratitude to the Journal of Law & Public Policy's wonderful staff. I'm so fortunate to be a part of this journal. All errors are begrudgingly my own. © 2023, James Bernstein. 559

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