Samuel Alito

There's a fairly good article on Alito's nomination up at townhall.com.  It examines the logical consequences of the left's claims that Alito's judicial rulings are out of the mainstream.

It seems that Alito's a shooter.

"He's a great marksman -- he can do double clays," she says, meaning he can hit two clay pigeon targets thrown simultaneously into the air before either hits the ground.

While this is of course no guaranty of his views on the 2nd Amendment, it's a big hint that he's NOT an anti-gun bigot.  Put together his judicial philosophy -- a strict constructionist -- together with a skilled shooter, and the Rybar case, and we're likely to end up at a strongly positive view of firearms.

It's possible that Alito is a gun owner in the same vein as Kerry -- that is, an elitist who treats trap shooting like a less peaceful version of golf.  But I don't think that's likely.

Hat tip to Of Arms and the Law.

In responding to a question on Roe v Wade, Alito laid out his philosophy of Constitutional interpertation as (paraphrased) finding the meaning of the text, as it was understood at the time.  That's not news, but it is nice to hear.

I didn't catch any significant gun mentions, or indeed, anything much of significance. It was clear to me that one side had put a great deal of effort into preparing for the hearings, and the other side simply ... hadn't.

Oh, don't get me wrong, the Wicked Witch of the East and his little dog Splash tried hard.  But his accusations were repeatedly refuted by the other side, and none of the opposition could muster any coherent objections.  I have only two serious concerns about Alito: first, he may put too much weight on precedent (there are many precedents out there that need to be overturned), and second, he may have an excessive deference toward the executive.  Neither concern is fatal, especially given the result of a failed nomination. 

The Democrats seem to be going through the motions here.  Little firebreathing.  Doesn't mean they will vote for Alito, or even vote for cloture, but they seem to be more posturing to look good for their special interests than feeling real passion.

Lots of mud was thrown, none of it stuck.

Publicola questions Alito's stance on the 2nd, saying that we don't really have any positive evidence for it.  He's right, in a way: we don't have anything concrete.  But I think the implications line up in the right direction, and I am cautiously optimistic, whereas with Miers there was simply no basis to draw any positive conclusions at all.

At any rate, I tried to leave a comment on the article, and it failed.  Sigh.  So here's my comment:

I guess you missed my take on this question.  It's true that Alito was silent on the 2nd Amendment question, and this does not necessarily bode well.  However, it's my considered opinion that the Supreme Court is going to need to be where 2nd Amendment cases start winning; there is so much established precedent against that most judges probably figure the Supreme Court would have corrected it if it was wrong.

The interesting firearms cases recently (Rybar, Lopez, Emerson, Bean, etc) have mostly, but not entirely, arisen from other considerations -- due process or commerce clause limitations.  Pure 2nd-Amendment challenges are routinely dismissed or ignored and no one much cares.  Remember the (priest? deacon?) who kept making machineguns and mailing them to the local prosecutor?  He had to force a prosecution by showing up on the steps of city hall with his gun -- which was unloaded, and his visit pre-announced -- and the courts cheerfully locked him up.  Nobody in government wanted a real 2nd Amendment test case before Rehnquist's court..

In the case of Rybar, Alito's commentary about congressional findings can be taken directly from the Supreme Court's US v Lopez precedent.  He's not doing anything more than channeling the Supreme Court there. 

You are correct that this doesn't necessarily tell us how he would rule on the Supreme Court -- but we know that he will not be looking for excuses to rule against us.  And while he values precedent, on the Supreme Court he will be looking at US v Miller (hopefully, with an enlightened understanding) and other Supreme Court cases, and asking why the lower courts have not followed clearly applicable precedent.

So, no, Alito is not a clear slam-dunk on the 2nd.  But I believe that he will reach the right conclusion given his judicial philosophy and an appropriate case.

Short of nominating Kozinski or Cummings, we're not likely to get a judge with a favorable 2nd Amendment record.  They just don't exist.

On the case of the strip-searched child, he thinks the legal issues are narrower than the media complaints, and he's got some good points.  And on Alito's dissent in Planned Parent v Casey (written before the Supreme Court ruling on that same case), he has an antidote for the likely tactics of the left: Alito was defending a notification provision, not a consent provision. 

I have absolutely no objections to a requirement for married women to notify their husbands before obtaining an abortion, given that there are appropriate exceptions -- such as abuse, death of the spouse, etc.  And the law had such exceptions.

GOA wants to thank all of you who contacted the President recently and suggested that he appoint a strong constitutionalist like Samuel Alito, Jr., to the Supreme Court. As you know, Judge Alito (from the Third Circuit) has a strong record in support of the Constitution. Gun Owners Foundation was involved in the Rybar machine gun case which we ultimately lost in the courts.   But Judge Alito offered a strong dissenting opinion to the majority report and argued that Congress has no right to regulate the private possession of machine guns. 

The nomination of Alito is going to drive the other side crazy.  Good. Judge Alito is a tremendous choice, and GOA will be asking you in the future to lobby your two U.S. Senators in favor of this pick.

Why wait?  The first hurdle is the Senate Judiciary Committee.  Although the Republican leadership have kept Specter, the chairman of said committee, on a short leash since his initial intemperate remarks, it can't hurt to tell the Senators on that committee your views.  Particularly if you are a constituent, and particularly if the Senator in question might not be inclined to give his full support to Alito.  That means Republicans likely to squish, and Democrats tempted to filibuster, need to be notified that people are watching their votes on this issue, along with their treatment of the nominee. 

The process starts in the Judiciary Committee, which has scheduled hearings beginning January 9th on Alito's confirmation.  Each Senator on that committee will have the opportunity to question Alito on issues of concern to them and to the nation.  The questions should be hard, because the job of Supreme Court Justice is not a trivial one.  But they should be polite, free of personal attacks, and focused on matters that are properly the concern of the judiciary. 

So let them know you are watching:

A pro-Second Amendment law prof emailed me:

Don't bet the farm.

Jodge Alito would give Congress the green light, under the commerce clause to regulate - BAN - firearms "if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate
commerce."

There has never been any requirement that Congress make "findings" that are true or even supported by evidence. And no court will second-guess Congress on the issue of "substantial[ness]" of the effect.

That's good advice, as far as it goes.  So far I haven't seen anything suggesting Alito's opinion on the 2nd Amendment directly.  However, his willingness to construe the commerce clause narrowly in a case involving machineguns is suggestive.  Not dispositive, just suggestive.

One thing that strikes me.

US v Lopez was commented on by Roberts in his confirmation hearings, and Roberts said something remarkably similar -- that a congressional finding or a requirement for a prosecutor to prove an interstate commerce nexus (not difficult, unless your gun is homemade) might have saved the no-guns-in-school law at issue in Lopez. 

Here is the relevant part of US v Lopez:

Although as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings, and indeed even [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 14]   congressional committee findings, regarding effect on interstate commerce, see, e.g., Preseault v. ICC, 494 U.S. 1, 17 (1990), the Government concedes that "[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Brief for United States 5-6. We agree with the Government that Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce. See McClung, 379 U.S., at 304 ; see also Perez, 402 U.S., at 156 ("Congress need [not] make particularized findings in order to legislate"). But to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here. 4 

In other words, while Alito can be criticized for not striking down the National Firearms Act as violating the 2nd Amendment, what he actually did do was exactly what Supreme Court precedent allowed him to do... he struck down the conviction on the grounds that there was no interstate commerce nexus.  And when the decision notes that a Congressional finding or nexus requirement might have saved the law, he's doing the same thing that Roberts was doing in his confirmation hearings: quoting Supreme Court precedent in US v Lopez.

It would be incorrect to cheer Alito as a 2nd Amendment champion.  He may turn out to be, with the right case before him.  He may not.  There's not much to go on.  But it's definitely incorrect to attack his opinion in Rybar for suggesting that Constitutionality was just a Congressional finding away.  He wasn't saying that in his own voice, he was channeling the Lopez precedent, just as Roberts did.

Reason's Jacob Sullum shares my concerns about Roberts on the Lopez decision (Roberts took the narrow view in his confirmation hearings, suggesting that a mere jurisdictional requirement would have saved the law):

Yet according to Roberts, the crucial defect in the Gun-Free School Zones Act was its lack of a "jurisdictional element" requiring the government to show that a firearm involved in a violation had traveled at some point in interstate commerce. In 1996 Congress passed a new version of the law that includes this requirement, which (as Roberts noted) is generally easy to meet.

They have some troubling words about Alito on this issue, but frankly, we're not likely to get someone better on this issue from this President; especially not after the rejection of Miers.

As Justice Clarence Thomas has been arguing for years, the Supreme Court cannot enforce principled limits to the Commerce Clause as long as it allows Congress to regulate not only interstate commerce but anything (including, we discovered this year, homegrown medical marijuana) said to have a "substantial effect" on it. Roberts told the Senate Judiciary Committee he has "no agenda to overturn or revisit" that doctrine, and it seems unlikely that Alito does either. Sadly, it looks like the "constitutional freak" is Thomas.

Remember, however, that lower court judges are bound by precedent.  Supreme Court justices are free to overturn precedents they think are wrong, although Roberts in particular characterized himself as reluctant to do so.

Their central point is that there is a difference between notification and consent.  Keep that in mind, because the Left will try to blur that line.

Declan of Politech has an article with one-paragrah summaries of Alito's cases.  Here are two of my own selections from his article:

Alito's strict view on the kinds of inventions that merit copyright protection should also be a comfort to high-tech businesses, said William Patry, a partner at Thelen Reid & Priest and author of The Patry Copyright Blog. Alito demonstrated this strict approach in 2004 when he denied Southco, a manufacturer of screws and industrial fasteners, copyright protection for its part numbers. Alito said the part numbers, which Southco alleged that its rival Kanebridge copied, lacked the originality and creativity required for copyright protection.

This is a welcome decision that shows sanity on the technology front.  That a company could even seriously consider trying to copyright part numbers (presumably to restrict competitors from supplying identical parts with the identical part numbers) is a demonstration of how far down the road to intellectual property absurdism we have already traveled.

On behalf of a 2-1 majority, Alito carefully avoided sweeping pronouncements of the potential omnipotence of futuristic spy gadgets. Instead, his logic was simple: because the informant consented to the recording, it could be used as evidence. His decision turned on the so-called one-party consent rule, "the well-established principle that a person has no legitimate expectation of privacy in conversations with a person who consents to the recording of the conversations," Alito said.

This one is a little bit more troubling, but remember these things about the case:

• The surveillance device was only turned on when the informant was in the room.
• The device was installed presumably with the permission of the property owner....
• ... and the property owner was a hotel, not a home.

So, we're not dealing with someone's home being bugged here.  Although I would rather a warrant be obtained for anything like this, I can concede that it's a borderline case.

Go read the article for more discussion of these and other cases from Alito.

From PoliTech (Saxe v Martin):

We disagree with the District Court's reasoning. There is no categorical "harassment exception" to the First Amendment's free speech clause. Moreover , the SCASD Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.

The Left will likely attack this decision as being in favor of "harassment", "racism", and "sexism".  But the truth is simple.  We have the right to say things that may offend others, protected by the First Amendment, and the government has no power to infringe upon that -- even if the Left wants to institute a so-called "anti-harassment" policy in a school.

OK, maybe that title is a bit of a stretch.  But Matt over at Stop the Bleating has an Alito-on-the-2nd-Amendment Post.

From Arms and the Law:

This is one of the cases arising out of "relief from disabilities." GCA 68 allowed persons barred from gun ownership to apply to ATF for relief, thus giving a relief valve for old or minor convictions, etc. Congress put a rider on ATF's budget forbidding it to expend money for this. SInce there was also a provision allowing appeal to court for a denial, and for an evidentiary hearing, question arose as to whether, when ATF can't give relief, you can appeal to court and prove you should have it. A three judge panel in an earlier case had said yes. In this one, gov't moved for hearing en banc to overrule that. Alito was part of the en banc ruling that did so, and said you can't appeal to court. Opinion is unanimous and notes that almost every court since their earlier ruling had gone the other way.

While this is a somewhat disappointing ruling, it does seem like there is weight of precedent involved here.  The decision could also be spun as a decision against judicial activism; without an actual denial to appeal, the court has no authority to act.  Defunding the provision is sort of repeal-lite, and if you read the bill that way it makes sense. 

Given the explicit Congressional de-funding, I think this decision falls more under deference to legislative authority than anything else.  But we should recognize it as a sign that not all decisions are going to go our way even with a judge we picked.

UPDATE: Here's the decision (which Alito did not write, but joined).  It should be noted that there are a number of cases related to this issue, including US v Bean, which I have followed briefly.

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.