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*Privacy, your home, and legal…

Privacy, your home, and legal pot in Alaska
One of the interesting things that happened while I was gone this weekend is the fact that the Alaska Court of Appeals ruled on Friday in favor of the legal use of marijuana in certain circumstances.

“With regard to possession of marijuana by adults in their home for personal use, (the law) must be interpreted to prohibit only the possession of 4 ounces or more of marijuana,” wrote Court of Appeals Judge David Stewart in the conclusion of the unanimous decision.

The ruling made the national news as one of those odd tidbits that they like to insert, but the media has missed some of the larger ramifications of the ruling.
The background: Article 1, section 22 of the Alaska Constitution reads:

“The right of the people to privacy is recognized and shall not be infringed…”

Read that again. “The right of the people to privacy is recognized and shall not be infringed.” Sounds like Alaskans were pretty smart when they put together their constitution.
In 1975, in the case of Ravin vs. the State of Alaska, the Alaska Supreme Court ruled that personal in-home use of marijuana was a protected right of privacy. Later, the legislature set a limit of 4 ounces for personal use.
Then, in 1990, a voter initiative criminalized marijuana possession of any amount. The current case of David Noy finally challenges that statute by claiming that the statute violates constitutional rights. The Court of Appeals agreed, and now it’s up to the Alaska Supreme Court to hear an appeal. It seems unlikely that the Supreme Court will overturn itself, when it made such a compelling argument in Ravin.
The Ravin case is particularly interesting. It’s worth reading the full original decision, authored by the late Justice Rabinowitz.
Rabinowitz not only drew upon the specific right of privacy in the Alaska constitution, but also brought up a huge list of cases involving the United States Supreme Court establishing a right of privacy, and a particular expectation of privacy in one’s own home. Rabinowitz concluded that privacy in the home is a fundamental right and requires a greater level of proof for the government to assert an interest.

the authority of the state to exert control over the individual extends only to activities of the individual which affect others or the public at large as it relates to matters of public health or safety, or to provide for the general welfare. We believe this tenet to be basic to a free society. The state cannot impose its own notions of morality, propriety, or fashion on individuals when the public has no legitimate interest in the affairs of those individuals. The right of the individual to do as he pleases is not absolute, of course: it can be made to yield when it begins to infringe on the rights and welfare of others.
Further, the authority of the state to control the activities of its citizens is not limited to activities which have a present and immediate impact on the public health or welfare. It is conceivable, for example, that a drug could so seriously develop in its user a withdrawal or amotivational syndrome, that widespread use of the drug could significantly debilitate the fabric of our society. Faced with a substantial possibility of such a result, the state could take measures to combat the possibility. The state is under no obligation to allow otherwise “private” activity which will result in numbers of people becoming public charges or otherwise burdening the public welfare. But we do not find that such a situation exists today regarding marijuana. It appears that effects of marijuana on the individual are not serious enough to justify widespread concern, at least as compared with the far more dangerous effects of alcohol, barbiturates and amphetamines….
Thus we conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.

Now attention is again being paid to this 1975 Alaska decision, and it is likely that the Alaska Supreme Court will affirm it. This is of particular interest as the United States Supreme Court has shown a significant current interest in privacy, particularly privacy in the home. This could pave the way to a future U.S. decision regarding federal marijuana laws.

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