David Hardy suggests caution on Alito...

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.

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