dissenting.
It is simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Accordingly, I dissent.
I.
At the outset, I note a justiciability problem that has not been addressed by the parties, the district court or the opinion of the panel majority. Although plaintiffs assert an “as applied” challenge to the workings of the Controlled Substances Act (CSA), the pleadings and evidentiary showings do not disclose, except with one possible exception, that the CSA has actually been applied to any of plaintiffs’ activities. This, of course, raises the question of whether this case is ripe for review and, in turn, whether plaintiffs have standing to bring this case before the court.
“[Wjhere it is impossible to know whether a party will ever be found to have violated a statute, or how, if such a violation is found, those charged with enforcing the statute will respond, any challenge to that statute is premature.” Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d *1236977, 986 (9th Cir.1991). To satisfy Article Ill’s standing requirements, a plaintiff must show that she has suffered a concrete and particularized injury in fact that is actual or imminent (not conjectural or hypothetical). Plaintiff must also show that the injury is fairly traceable to the challenged action of the defendant and that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Citizens for Better Forestry v. United States Dep’t of Agric., 341 F.3d 961, 969 (9th Cir.2003).
In determining whether these jurisdictional prerequisites are satisfied, a court must determine whether the plaintiff has a “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). In asking for injunctive relief, plaintiffs bear a special burden of showing real or immediate threat of irreparable injury when the conduct they are seeking to enjoin has not yet occurred-it is not enough to show past injury. San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996). And, the mere existence of a statute which plaintiffs feel they will be forced to violate is not sufficient to create an Article III case or controversy. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc).
In San Diego County Gun Rights, the court considered a pre-enforcement challenge to the constitutionality of the Violent Crime Control and Law Enforcement Act. The district court had dismissed the claims for lack of standing and ripeness because none of the individual plaintiffs had been prosecuted, arrested or incarcerated for violation of the Act. The plaintiffs challenged the Act on Commerce Clause grounds,1 and argued they had standing based on, among other things, threat of future prosecution. The court noted that in order to show an imminent and genuine threat of future prosecution, the plaintiffs must have articulated concrete plans to violate the statute. 98 F.3d at 1127. Plaintiffs can meet this prong by showing that they have in the past violated the act and intend to continue engaging in prohibited acts in the future. Id. (citing Babbitt, 442 U.S. at 303, 99 S.Ct. 2301.) Next, there must be a specific threat of prosecution, and the plaintiffs bear the burden of showing that the act in question is actually being enforced. Id. A specific warning of prosecution may suffice, but “a general threat of prosecution is not enough to confer standing.” Id. Finally, the plaintiffs can meet their burden to show standing in a threat-of-prosecution situation by showing past prosecutions under the act in question. Id. at 1128. Because the gun rights plaintiffs could not establish the foregoing requirements, they did not meet their burden of showing they had Article III standing for their claim. Id. at 1129.
With regard to ripeness, the court noted that the issue must be “fit for judicial decision” and that “the parties will suffer hardship if we decline to consider the issues.” Id. at 1132. Because the issues were not “purely legal” and because the plaintiffs had not been threatened with prosecution, the court found that the claims were not ripe for adjudication. Id.; see also Thomas, 220 F.3d at 1138-39 (holding that landlords who vowed not to follow an anti-discrimination housing statute did not have a justiciable claim for injunctive relief when they had not yet violated the statute and had certainly not been prosecuted for any violation).
*1237In this case plaintiffs allege three instances of injury in their prayer for relief. They ask the court to enjoin the DEA from: 1) arresting or prosecuting them or their caregivers for possession and/or cultivation of marijuana; 2) seizing their medical cannabis; 3) seeking civil or administrative sanctions against them or their earegivers-and to declare the CSA unconstitutional as applied to them through these acts. (Plaintiffs’ Petition at 12-13). According to the petition, some of Monson’s marijuana plants have already been seized, and past history suggests that if the DEA can find out where Raich’s plants are, they will be seized as well. Thus, I concede that it is at least arguable that claim two, the “seizing” claim, may be actionable. However, applying San Diego County Gun Rights to the injuries alleged in claims one and three, it is clear that they are not ripe for review.
With regard to these two claims, the intent to violate the statute requirement is likely met. Plaintiffs have violated the CSA in the past, and indicate that they will continue to do so in the future. However, plaintiffs do not show there is a threat of future prosecution or a history of past prosecutions, at least as applied to their unique factual situations. I doubt whether anyone can or will seriously argue that the DEA intends to prosecute these two seriously ill individuals. E.g., Alex Kreit, Comment, The Future of Medical Marijuana: Should the States Grow Their Own?, 151 U. Pa. L.Rev. 1787, 1799 n. 85 (2003) (noting that “DEA’s limited resources make it practically impossible for its officers to enforce minor possession laws without extensive cooperation from state police”).
While we can speculate on whether future prosecution is likely (given the fact that they are known users and possessors and they have not yet been arrested or prosecuted), it is the plaintiffs’ burden to show standing, not this court’s burden to disprove it. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.2003) (“The party invoking federal jurisdiction, not the district court, bears the burden of establishing Article III standing.”). Because this particular issue was not briefed or argued by the parties, or mentioned by the district court, we should remand the case to the lower court to determine whether the threat of criminal prosecution and the possible levying of civil administrative penalties are matters which are ripe for review. I suggest that such a hearing will undoubtedly reveal that plaintiffs simply use this action to seek an advance judicial ruling on government actions that may never be applied to them or to similarly situated individuals, if any such persons presently exist in California.2
II.
Because the plaintiffs arguably may have standing to assert one ripe claim of future injury, the seizure claim, I address the merits of their Commerce Clause arguments. In Wickard, an Ohio wheat farmer (Filburn) was fined for growing excess acres of wheat on his small farm. Filburn was charged with violation of the Agricultural Adjustment Act of 1938, which was enacted to control the volume of wheat moving in foreign and interstate corn-*1238merce, an effort by Congress to address, in part, surpluses, shortages and resulting extreme price variations. Filburn asserted that the Act was an unconstitutional exercise of Congress’s Commerce Clause powers because it purported to regulate farm-cultivated wheat milled into flour for on-the-farm family consumption and also used for producing poultry and livestock products which were partly consumed by the Filburn family.3 The Court rejected this argument, stating, “even if [the] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id. at 125, 63 S.Ct. 82. The Court then found these activities constituted a substantial economic effect. Id. at 128-29, 63 S.Ct. 82.
Notably, the Court stated, “[t]hat appel-lee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.” Id. at 127-28, 63 S.Ct. 82. Rationales in support of congressional regulation of how much wheat could be grown on an individual farm included: that wheat growing for whatever purpose was an important commercial enterprise in and among the various states; that wheat surplus and price fluctuations had been a significant economic problem; that several other wheat growing countries had instilled similar growing quotas and price guarantees; and that the direct and indirect consumption of wheat on the farm where it was grown was the “most variable factor in the disappearance of the wheat crop.” Id. at 125-27, 63 S.Ct. 82.
Except for why the marijuana at issue in this case is consumed, i.e., for medicinal rather than nutritional purposes, plaintiffs’ conduct is entirely indistinguishable from that of Mr. Filburn’s. The Agriculture Adjustment Act reached Filburn’s wheat growing activities, even that part of the crop grown, directly and indirectly, for family food consumed in the home on the Filburn farm. Here, under the precedent established in Wickard, the CSA clearly reaches plaintiffs’ activities, even though they grow, or take delivery of marijuana grown by surrogates, for personal consumption as medicine in the home as permitted by California, but not federal, law.
In reaching its decision, the court defines the regulated class as “the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician.” Ante at 1228. The Wickard Court could easily have defined the class of activities as “the intrastate, noncommercial cultivation of wheat for personal food purposes.” Plaintiffs argue that Wickard is distinguishable because Filburn was engaged in the commercial activity of farming, while their activities are purely non-economic.4 This argument fails on two fronts. The cultivation of marijuana for *1239medicinal purposes is commercial in nature. The argument ignores the fungible, economic nature of the substance at issue-marijuana plants-for which there is a well-established and variable interstate market, albeit an illegal one under federal law. And, the growing of wheat for family consumption as flour, which was and is a legal enterprise in Ohio and other states, is as non-economic as it is possible to get with cultivated crops.
The Court in United States v. Lopez, 514 U.S. 549, 560-61, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 610, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), expressly affirmed the continuing validity of Wick-ard. And, when put to the tests developed by Lopez and clarified in Morrison, the CSA clearly passes constitutional muster especially as applied to the plaintiffs. At the risk of some redundancy, I review each Morrison refinement under the allegations plaintiffs make in this case.
A. Is this particular activity economic or non-economic, but necessarily regulated as part of a larger regulatory scheme?
Even assuming that the court has correctly defined the class-“the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physiciari’-the conduct at issue is subject to regulation. First, as earlier stated, I respectfully disagree with the court’s insertion of the term “noncommercial” into the class definition because the activity at issue here is economic. Plaintiffs are growing and/or using a fungible crop which coidd be sold in the marketplace, and which is also being used for medicinal purposes in place of other drugs which would have to be purchased in the marketplace. As also earlier indicated, this activity is essentially indistinguishable from the activity in Wickard, and our sister circuits have recognized the similarities. See Proyect v. United States, 101 F.3d 11, 14 (2d Cir.1996) (per curiam) (rejecting Commerce Clause challenge to a conviction under 21 U.S.C. § 841(a)(1) for growing marijuana even though there was no evidence that the drug was intended for interstate distribution). In Proyect, the court noted that cultivation of marijuana for individual use did affect commerce in the same way that Filburris personal consumption of wheat did:
In any event, the cultivation of marijuana for personal consumption most likely does substantially affect interstate commerce. This is so because “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market.” Wickard v. Filburn, 317 U.S. 111, 128, 63 S.Ct. 82, 91, 87 L.Ed. 122 (1942). As such, there is “no doubt that Congress may properly have considered that [marijuana] consumed on the [property] where grown if wholly outside the scheme of regulation would have a substantial effect” on interstate commerce. Id. at 128-29, 63 S.Ct. at 90-91.
Proyect, 101 F.3d at 14 n. 1.5
*1240Similarly, cultivating marijuana for personal 6 use keeps plaintiffs from seeking an outside source of either marijuana, or possibly, a (federally) legally prescribed and dispensed drug such as Marinol-both of which are articles of interstate commerce. As with the wheat consumed as food by the Filburns, plaintiffs are supplying their own needs, here symptom-relieving drugs, without having to resort to the outside marketplace. This deportment obviously has an effect upon interstate commerce.
However, even if the word “non-economic” is rightly included within the court’s class definition, plaintiffs’ behavior is still reached if its regulation is essential to reaching the larger commercial activity. In United States v. Leshuk, 65 F.3d 1105 (4th Cir.1995), the court held that the Lopez opinion did not alter its previous holding that the possession prohibitions in the CSA were a constitutional exercise of Congress’s powers pursuant to the Commerce Clause. Id. at 1112. Further, the court noted that the act was not
unconstitutional as applied if his possession and cultivation were for personal use and did not substantially affect interstate commerce. Although a conviction under the Drug Act does not require the government to show that the specific conduct at issue substantially affected interstate commerce ... Lopez expressly reaffirmed the principle that “where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.”
Id. (quoting Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968))) (emphasis added). See also Proyect, 101 F.3d at 14 (quoting the same passage from Lopez); United States v. Wall, 92 F.3d 1444, 1461 (6th Cir.1996) (Boggs, J., concurring and dissenting) (noting that noncommercial activity is subject to congressional oversight when “its regulation is an essential part of the regulation of some commercial activity”).
Prior to Lopez and Morrison, this circuit held that the CSA does not violate the Commerce Clause. In United States v. Visman, 919 F.2d 1390 (9th Cir.1990), the court found that marijuana plants “rooted in the soil” (and therefore which could not have crossed state lines) do affect interstate commerce. Id. at 1392-93. The court deferred to Congress’s findings that “controlled substances have a detrimental effect on the health and general welfare of the American people and that intrastate drug activity affects interstate commerce.” Id. at 1393. Notably, the court held that “local criminal cultivation of marijuana is within a class of activities that adversely affects interstate commerce.” Id. (emphasis added).
Then, in United States v. Kim, 94 F.3d 1247, 1250 (9th Cir.1996), this circuit affirmed the continuing validity of Visman in light of the Lopez decision. See also United States v. Tisor, 96 F.3d 370, 374 (9th Cir.1996) (rejecting Commerce Clause challenge to the CSA after Lopez). Furthermore, In United States v. Bramble, *1241103 F.3d 1475, 1479 (9th Cir.1996), the court affirmed, with little comment, the district court’s rejection of the defendant’s Commerce Clause challenge in his conviction for simple possession of marijuana. The Bramble district court noted congressional findings that local distribution and possession of illegal drugs contribute to ever increasing interstate drug trafficking. So, even though Bramble was guilty of only simple possession, it was clearly recognized that “there is an interstate market for illegal drugs.” 894 F.Supp. 1384, 1395 (D.Haw.1995).
Of course, none of these cases involve the precise, unique facts involved in this litigation, where plaintiffs are medicinal users of marijuana, grow their own supply or obtain it free of charge from surrogate producers, and do so lawfully under state law. However, because the just-described conduct is still illegal under federal law, there is no meaningful distinction7 between the simple possessor in Bramble and plaintiffs. If Congress cannot reach individual narcotic growers, possessors, and users, its overall statutory scheme will be totally undermined. The goal of the CSA is to prevent the interstate marijuana trade, even medicinal marijuana. Because plaintiffs’ actions violate a federal statute, inclusion in the class formulation “for personal medical purposes on the advice of a physician” adds nothing to the analysis. While this result may seem unduly harsh since the plaintiffs are seriously ill, in the eyes of the DEA agent, there is no legal distinction between the simple user and possessor in Bramble and Leshuk and the plaintiffs.
That medicinal marijuana is acceptable in several states surrounding California also undermines the court’s conclusion. Even if the plants are grown for purely medicinal purposes, it is probable that an interstate market for medicinal marijuana has developed with users from surrounding jurisdictions. All of this contributes to “swelling the interstate traffic in such substances.” 21 U.S.C. § 801(4) (Congressional findings in support of the CSA). Thus, the activity in question here is almost certainly economic, but even if it is not, as held in Lopez, its regulation is essential for Congress’s regulation of the larger economic activity of the drug trade.
B. Does the CSA contain a jurisdictional element?
A jurisdictional element is a specific provision in a federal statute which would require the government to establish facts “justifying the exercise of federal jurisdiction in connection with any individual application of the statute.” United States v. Rodia, 194 F.3d 465, 471 (3d Cir.1999). There is nothing in the statute at issue here which makes a connection to interstate commerce an element of the offense.
C. Were there adequate congressional findings?
As noted in Visman, Kim and Bramble, the congressional findings in the CSA have already been relied upon by this circuit. See also United States v. Rodriquez-Camacho, 468 F.2d 1220, 1221-22 (9th Cir.1972). Admittedly, the findings do not address the specific use at issue here-cultivation and personal use for medicinal purposes. However, because medicinal use is not permitted by federal law, I fail to see how this is a particularly relevant concern. Congressional findings contained in 21 U.S.C. § 801(4) specifically state that, “Local distribution and possession of controlled substances contribute to swell*1242ing the interstate traffic in such substances.” As pointed out above, plaintiffs’ conduct does, or will, contribute to swelling the interstate traffic in marijuana, including medicinal marijuana.
D. What is the extent of the attenuation between this conduct and interstate commerce?
Finally, the court contends that circuit precedent dictates that we recognize such a degree of attenuation between the plaintiffs’ conduct and interstate commerce that the connection is effectively severed. I disagree. I begin by acknowledging the dicta in the concurring opinion in Conant v. Walters-Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce.” Conant v. Walters, 309 F.3d 629, 647 (9th Cir.2002) (Kozinski, J., concurring), cert. denied, — U.S. ---, 124 S.Ct. 387, 157 L.Ed.2d 276 (2003). On the other hand, Congress contemplated individual growers, possessors and users when it made its findings regarding the CSA. 21 U.S.C. § 801(4). And, in light of the growing interstate community of medicinal marijuana users, the attenuation is not great, even, perhaps, nonexistent. Accordingly, an evaluation of any attenuation factor favors the CSA’s constitutionality.
Plaintiffs, and the court, rely extensively on this circuit’s decision in United States v. McCoy, 323 F.3d 1114 (9th Cir.2003), but the case does not bear the weight the court places on it. It is distinguishable in at least one8 key respect-marijuana is a cultivated, fungible commodity that has objective and readily transferable value in the marketplace, as compared with the noncommercial aspects of the home photograph taken by Ms. McCoy for her personal use. See id. at 1120. While it is clear that plaintiffs do not propose to sell or share their marijuana with others similarly situated (or even not similarly situated), they could. This is almost certainly not true of the McCoy family photograph.
This circuit’s more recent decision in United States v. Stewart, 348 F.3d 1132, 2003 WL 22671036 (9th Cir.2003) does not alter my conclusions. In Stewart, a case that I respectfully believe was wrongly decided, the court invalidated the defendant’s conviction for possession of five home-assembled machine guns. The court found that 18 U.S.C. § 922(o) was an invalid exercise of Congress’s commerce power as applied to a defendant who assembled parts into a machine gun by himself at home. The court held that because only the machine gun parts moved in interstate commerce, and because the guns were unique in that they could only have been made by the defendant himself (they were not part of a machine gun “kit,” akin to a “chair from IKEA”), the activity was, according to a majority of the panel, beyond Congress’s commerce power. Id. at *3.
Purportedly applying the Morrison test, the Stewart court found that possessing machine guns was not economic activity. The court noted that “[wjhatever its intended use, without some evidence that it will be sold or transferred-and there is none here-its relationship to interstate commerce is highly attenuated.” Id. at *4. Furthermore, the overall regulation did not have an economic purpose. Id. This gun regulatory scenario is distinguishable9 from that of the CSA and the plaintiffs’ *1243possession of the fungible, readily marketable economic commodity at issue here-the marijuana plants. There is nothing unique about Raich and Monson’s marijuana seeds or the plants they produce, and in Raich’s situation the marijuana plants were clearly “transferred” to her from her horticulturally inclined surrogates.
The Stewart court rejected the district court’s reasoning that the activity was reachable because the parts had moved in interstate commerce, noting “[a]t some level, of course, everything we own is composed of something that once traveled in commerce.” Id. at *2. With respect, I disagree, and a prime example of the frailty of this reasoning is Mr. Filburn’s home-consumed wheat. Unless we trace the components of that wheat to an unacceptable level (and argue that the nitrogen and other nutrients taken up through the roots, the oxygen absorbed through the leaves and the water absorbed from the soil, all in furtherance of the wheat’s growth process, had moved in interstate commerce), I don’t believe that the commodity involved in Wickard was composed of any parts that had ever moved in interstate commerce.10 Yet the grain was still deemed by the Supreme Court to be the proper subject of congressional regulation through the commerce power. If Mr. Filburn’s wheat production for home use was federally regulable, and Wickard v. Filburn remains binding precedent in this and every other circuit, as it does, plaintiffs’ marijuana plants are subject to congressional regulation under the CSA.
III.
Three out of the four Morrison factors favor regulation, and the conduct in this case is indistinguishable from the conduct at issue in Wickard v. Filburn. Accordingly, I dissent.
. Plaintiffs also asserted claims pursuant to the Second and Ninth Amendments. The court dismissed these claims because redress of individual grievances was not cognizable under either amendment. 98 F.3d at 1125.
. I respectfully disagree with the conclusion the court reaches in footnote one of its opinion with regard to remedies available to plaintiffs, even assuming that the court's constitutional conclusions are correct. A court has no power to provide a remedy for a claim over which it has no jurisdiction. And clearly, California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir.2003), provides no support for the proposition the court announces in this regard. Id. at 1094 n. 2 (noting that the distinction between "standing” and "ripeness” label was largely immaterial). At best, under the posture of this case, the district court may enjoin seizure of plants, nothing more.
. It was Filburn's practice to use part of the grain from his "small acreage” of winter wheat to feed poultry and livestock on the farm, some of which products were consumed as food on the farm and also to use some of the wheat to make "flour for home consumption.” The Supreme Court deemed all of Filburn’s uses to be regulable by Congress. Wickard, 317 U.S. at 114, 128-29, 63 S.Ct. 82.
. This "non-economic” argument apparently attempts to distinguish the usage in Wickard from the usage allegations in this case. In Wickard, the 239 bushels of wheat produced from the disputed acres were deemed to have been slated for use as follows: a portion made into flour for home use, a portion sold locally as grain, a portion fed on the farm to produce poultry and livestock products with part of these products being consumed as food on the farm, and the balance kept for seed. Wickard, 317 U.S. at 114, 63 S.Ct. 82. However, the Supreme Court specifically focused on the *1239regulability of the home-consumption portion of the wheat saying, "[t]he effect of [home] consumption of home-grown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop.” Id. at 127, 63 S.Ct. 82. Therefore, even though plaintiffs' usage of their marijuana crop is all personal, given Wickard, the plaintiffs, in their attempt to support this non-economic argument, seek to advance an immaterial factual distinction that leads to no legal difference between the two situations.
. At footnote four of its opinion, the court attempts to distinguish the reach of Proyect by noting the involvement of 100 marijuana plants. We know that six cannabis plants were seized from Monson in just one instance and that Raich regularly receives an undis*1240closed amount of marijuana from her purported benefactors. Over time it is likely that many times over 100 plants will be consumed by these two users alone. Thus, the distinction the court attempts to reach is counterproductive to its arguments and actually supports the thrust of this dissent.
. To use a well-known basketball term, this case would be a "slam dunk” against Ms. Raich if she were paying her remote suppliers to grow the marijuana she uses. As it is, the consideration the caregivers receive is knowing that Ms. Raich is purportedly in less pain because of their efforts.
. Admittedly, one distinction is that the possessor and user in Bramble purchased the marijuana, presumably from a dealer. But, as admitted at oral argument, plaintiffs and their surrogates obviously purchased the seeds from an outside source.
. McCoy is also distinguishable because the issues there did not suffer from the standing and ripeness problems identified earlier. The McCoy defendant had been charged and convicted under the statute she was challenging "as applied.”
. Stewart is also distinguishable for the same reason as McCoy, identified in the immediately preceding footnote.
. With further respect, and for similar reasons, I think it might come as a surprise to a mid-Nebraska cattle rancher that the baby calf born on his property and ultimately subject to numerous federal agricultural regulations was composed of parts that had moved in interstate commerce.