Interesting Montana Supreme Court opinions on state medical marijuana laws

Montana is one of a number of western states that has been having, now for almost a decade, a wild legal and practical experience with medical marijuana legalization and regulation. This paragraph from the start of a new ruling from the Montana Supreme Court in Montana Cannabis Industry Association v. Montana, 2012 MT 201 (Mont. Sept. 11, 2011) (available here), provides this account of the legal basics:

In 2004, Montana voters approved the use of medical marijuana through the passage of I-148, the Medical Marijuana Act.  The 2004 Medical Marijuana Act left in place those provisions in the Montana criminal code that make it illegal to cultivate, possess, distribute or use marijuana, while simultaneously protecting authorized users of medical marijuana from being prosecuted.  Section 50-46-201(1), MCA (2009) (repealed 2011).  In 2011, the Montana Legislature, in response to a drastic increase of caregivers and medical marijuana users, passed House Bill 161, which repealed I-148.  The Governor vetoed House Bill 161, and in response, the Legislature enacted Senate Bill 423, which repealed the 2004 Medical Marijuana Act and replaced it with the Montana Marijuana Act (“MMA”), § 50-46-301 et seq., MCA, which dramatically changed the landscape for the cultivation, distribution, and use of marijuana for medical purposes.

Anyone interested in the law and policy of state marijuana prohibitions and regulations should be sure to read the lead opinion in Montana Cannabis Industry Association: the majority of the Montana Supreme Court sets forth a cogent and convincing explanation for why regulations in the new Montana Marijuana Act do not violate various individual rights provisions of the Montana Constitution.

In addition, anyone interested in federalism and justiciability issues should be sure to read the dissenting opinion in Montana Cannabis Industry Association: Justice James Nelson sets forth a forceful and not-quite-convincing explanation for why he believes the Montana Supreme Court ought not have ruled in this case given the federal statutory prohibition on marijuana possession. Here is a key passage from Justice Nelson's dissenting opinion which I continue to ponder (with my emphasis added):

Stripped to its core, the remarkable premise underlying Plaintiffs’ request for relief in this case is that they have a fundamental right under the Montana Constitution to engage in conduct which is criminal under federal law. Indeed, no matter what this Court might hold in this case or any of the other medical marijuana cases, the underlying assumption of everyone involved is that the plaintiffs intend to go out and violate the federal Controlled Substances Act.  That Montana’s courts have become complicit in this endeavor (by taking up questions regarding the interpretation of Montana’s medical marijuana laws in the absence of an actual underlying criminal prosecution) is shocking.

I disagree with the premise implicit in the Court’s approach — namely, that it is appropriate for state legislatures to enact laws which purport to make lawful conduct which federal law has already dictated is unlawful. Despite the Court’s, the Legislature’s, and the Plaintiff’s efforts, marijuana possession and distribution cannot simultaneously be both lawful and unlawful — except, perhaps, inside Schrödinger’s cat’s box. Indeed, it is axiomatic that federal laws prevail over contrary state laws....

Under the Supremacy Clause, state law must give way to federal law in certain circumstances, including “cases where compliance with both federal and state regulations is a physical impossibility.” Arizona, 132 S. Ct. at 2501 (internal quotation marks omitted). Under federal law, marijuana is classified as a Schedule I drug. Gonzales v. Raich, 545 U.S. 1, 14, 125 S. Ct. 2195, 2204 (2005). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. Gonzales, 545 U.S. at 14, 125 S. Ct. at 2204. It is a physical impossibility to comply with this federal law while, at the same time, engaging in the use, possession, or distribution of medical marijuana which Plaintiffs claim Montana’s Constitution and statutes allow. Of course, Plaintiffs could avoid this conflict by simply refraining from engaging in such activities; however, they have indicated a desire not to do so. In this circumstance, federal law prevails over state law. Gonzales, 545 U.S. at 29, 125 S. Ct. at 2212 (“[L]imiting the activity to marijuana possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”). And thus the question whether Plaintiffs’ use, possession, or distribution of marijuana is in compliance with Montana law involves a purely academic (and therefore nonjusticiable) determination.

I suspect it is the substance of the law in question here that in part prompts Justice Nelson to claim to find "shocking" efforts by Montana's legislature and its judiciary to develop and review state criminal laws independent of federal criminal laws.  That said, I wonder if others think there may be some force to the notion that state courts ought not even take up state marijuana legalization issue in the shadow of blanket pot prohibition at the federal level. 

Perhaps shifting the conversation to gun rights might provide a useful perspective on these matters.  Do readers think Justice Nelson would find "shocking" efforts by Montana's legislature and its judiciary to develop and review a new state statute which provided, for example, that nonviolent low-level drug offenders and/or persons with domestic violence misdemeanor convictions could get a state gun permit a decade after completing their sentence?  Such a statute would seek to legally authorize for state law purposes an activity that federal law right now makes illegal.  Is there are argument that any effort to seek a clarification of the reach and application of such a gun law should be deemed "purely academic (and therefore nonjusticiable)" by Montana courts?