Defendants, indicted for violations of marijuana laws, moved to dismiss the indictment. The District Court, Sarokin, J., held that federal statutes prohibiting possession of marijuana were not unconstitutional under Ninth and Tenth Amendments on ground that they punished crimes without victims. Motion denied.

1. Constitutional Law ©=38 Task of court, when determining whether right is fundamental so as to require legislation to be supported by compelling state interest, is to assess whether there is such right explicitly or implicitly guaranteed by Constitution.

2. Constitutional Law «=>82(6) Smoking marijuana does not qualify as fundamental constitutional right. U.S.C.A. Const. Amends. 9, 10.

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[551 F.Supp. 647]

"This court agrees with the conclusion reached in NORML v. Bell, 488 F.Supp. 123 (D.D.C.1980):
Smoking marijuana does not qualify as a fundamental right, Ravin v. State, 537 P.2d 494, 502 (Alaska 1975) "

"In ascertaining whether a right is fundamental, a court must determine whether the right is "explicitly or implicitly guaranteed by the Constitution." ................The Court ... does not "pick out particular human activities, characterize them as 'fundamental,' and give them added protection * * *." To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands. "

"Because the court finds that no fundamental right of defendants is implicated in their possession of marijuana, the government is not required to support the legislation here challenged with a compelling state interest. The constitutionality of the legislation will be upheld if there is a rational basis to support it."

"In determining that the rational basis test is the correct one to use to test this legislation, it is unnecessary to determine whether there is any protection under the ninth and tenth amendments for possession of marijuana. The court accepts the premise of defendants, conceded by the government at argument, that it would be unconstitutional for the government to criminalize possession of a completely harmless substance, although such principle does not appear specifically in the ninth or tenth amendments. If defendants had proven that marijuana use clearly causes no harm to the users or to the community,"