Alito: US v Rybar

From US v Rybar (dissenting):

The statutory provision challenged in this case, the portion of 18 U.S.C. section 922(o) that generally prohibits the purely intrastate possession [Footnote 1] of a machine gun, is the closest extant relative of the statute struck down in Lopez, 18 U.S.C. section 922(q)(1)(A), which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, [Footnote 2] that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce...

This theory, if accepted, would go far toward converting Congress's authority to regulate interstate commerce into "a plenary police power." Lopez, --- U.S. at ----, 115 S.Ct. at 1633. If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything -- thenthe purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything. But if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits...

Hat tip to Alphecca on that case.  Alito would have struck down the machine gun regulations (so long as the machine gun did not travel in interstate commerce).  The decision does not come out of the blue; the Supreme Court's US v Lopez case struck down the "no guns in schools" law.  Roberts characterized that law in his his hearings as a case where Congress "forgot" to require an interstate commerce nexus for a conviction.  Remember, if you will, that during the 1990's the Court briefly put a new emphasis on limits to the commerce clause; US v Lopez was one of those decisions.  The Court eventually backed down, leading to cases like Raich.  So Alito's dissent, in this context, in 1995, is perhaps best characterized as eager rather than revolutionary. 

His elevation to the Supreme Court will hopefully encourage that court to revisit the question of federalism, and to stay the course this time.

UPDATE: American Realpolitik thinks this decision isn't necessarily pro-gun, quoting the following:
This would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done. See Del. Code Ann. tit. 11, Section(s) 1444 (1995); N.J. Stat. Ann. Section(s) 2C: 39-5a (West 1995); 18 Pa. Cons. Stat. Ann. Section(s) 908 (1996); V.I. Code Ann. tit. 14, Section(s) 2253( 1994). Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element - a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. Section(s) 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.
While he's right that Alito's dissent was not based on the 2nd Amendment, I think we all know that in 1995 a 2nd Amendment case would go nowhere fast.  The Supreme Court had recently signaled a willingness to hear commerce-clause challenges, however.  Existing case law makes it difficult to stay within precedent while making a 2nd Amendment challenge stick, so I don't blame advocates or judges for trying other angles.

This entry was published Mon Oct 31 17:48:01 CST 2005 by TriggerFinger and last updated 2005-10-31 17:48:01.0. [Tweet]

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