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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: 


        Into   the  Weeds of the Third Amendment:
          Constitutional Protections for At-Home
                           Marijuana Use

                             JAMES  BERNSTEIN*

   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.


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