Alito on the 2nd, redux

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.

Posted on 2005-11-06 18:22:04.0 by matthew@triggerfinger.org

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