FWIU, the Supreme Court is very loath to reverse itself, but is less loath to issue rulings which change the effect of earlier readings but are nonetheless consistent with them.
For example, a compelling part of the argument in Filburn was that by growing his own wheat, the farmer was depriving a would-be seller of a buyer. Even if the farmer would not have personally bought wheat from out of state, his failure to buy the wheat would have shifted (by the amount of wheat in question) the supply/demand balance within his state and thus affected interstate commerce.
The argument doesn't work in the pot case, however, because there is no legal interstate market. Although it is certainly possible that growing pot within the state for immediate in-state consumption might cause people who might otherwise have done so to stop buying out-of-state pot, it would be hard to argue that their failure to buy out of state pot was somehow a bad thing.
sorry, I meant to say I would not approach it from the Filburn angle. (although I agree with your analysis)
I would approach it from the angle that the United States was the first country to take away power from the King (divine right of king = the king has his power from god by law). The US eliminated the middle man (the king) and gave each person the divine right of kings power for his own property. Thus - every man a king. Remarkable.
William Pitt said in a speech to the British Parliment (explaining this new American idea):
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter -- but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!"
If every man is a king on his own property (as enshrined by the Constitution) then it follows that the man may grow what he will and injest what he will with no one to answer to but whom he recieves his 'divine right from' - ostensibly God.
Now, I don't know how to frame that legally, but thats what I meant. :)
Ah, you just have to look for it.
Number one, if marijuana were made legal for medical purposes on a state-by-state basis, legal medical marijuana interstate commerce would soon spring into existence (surely if it's legal in State A and State B you wouldn't stop them from shipping to each other -- that's silly).
Number two, a patient who smokes medical marijuana for their condition does not purchase legal products for their condition (which are interstate commerce). This is almost identical to the Filburn case, and why I believe the USSC will overturn the Ninth Circuit (yet again).
One last thing. Raich was decided by the Ninth Circuit, the most overturned Circuit Court in the country. Her case was heard by only three judges of the Ninth, one of whom dissented on Filburn grounds! (The Ninth circuit refused to hear the case en banc.) This is not a real strong case.