Alito's Avtomats

There were a lot of thing I wanted to do today. Writing this post, & more importantly reading the case law I have just read in order to write this post was not on my top ten list. But here I am & there you are so we might as well get on with it.

Alito dissented from the majority in U.S. v. Rybar. Rybar was charged with possessing a machine gun in violation of 18 U.S.C. 922(o). This is the heinous & questionably enacted (also see footnote 217) Hughes Amendment to the National Firearms Act of 1934 (as amendment by the Gun Control Act of 1968). This is the law that prohibits transfer to civilians of automatic weapons made after May 19th 1986. For a more detailed discussion of the Firearms Owners Protection Act of 1986 David Hardy from Of Arms & The Law has a very thorough paper you should read. This link takes you to the section (scroll up just a little) that deals with the Hughes Amendment. Be sure to set aside some time as it is a very thorough discussion. & be sure to click the footnotes as they are interesting all by themselves.

The majority held that 18 U.S.C. 922(o) was not an undue expansion of the commerce clause that 18 U.S.C. 922 (q) was as was struck down in U.S. v. Lopez. (Incidentally 18 U.S.C. 922 (q) is back - it's a slightly reworded version of the Gun Free School Zones Act that Lopez struck down). The gist was that the previous congressional findings used to justify the 1968 Gun Control Act & it's predecessor - the Omnibus Crime Control & Safe Streets Act were applicable to the Hughes Amendment & showed a sufficient relationship between intrastate possession & commerce to uphold the statute. They also went on to address a 2nd amendment challenge to the section in question. The majority concluded, through a reliance more on Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942) than on U.S. v. Miller that the 2nd amendment does not offer protection from legislation to machine guns or to people not in an "active" militia.

Alito dissented, but only on the commerce clause reasoning. He did not touch upon the 2nd amendment question or the majority opinion concerning that. He merely objected to the idea that the interstate commerce clause touched upon intrastate possession when there were no congressional findings to justify it.

His dissent clearly expresses that if congressional findings were included, even from a referring committee then he'd view the case in a different light. He also felt that a jurisdictional element (usually a simple little phrase such as “being used or having been used in interstate commerce” inserted into the operative part of a law) would have made the law acceptable. But as it was he felt Lopez demanded a striking of the law as it exceeded the Interstate Commerce Clause powers conferred by the constitution as reasoned in Lopez.

He also went on to say that states are not prohibited from banning simple possession of machine guns. That would indicate that he does not think that the 2nd amendment can be applied to the states via the 14th amendment, but whether that’s his read of the constitution or merely his being bound by precedent is not clear.

So I'm going to side with Matt of Stop The Bleating, who does not think this dissent bodes as well for the pro-RKBA folks as David Kopel or David Hardy seem to think. Both gentlemen seem to think that while not showing any obvious support for the 2nd amendment, it at least shows that Alito is not hostile to it. Matt's view is that it only shows a respect for the commerce clause (which is a good thing) but it would not rule out Alito having a very watered down view of the 2nd amendment. An anonymous law professor e-mailed David Hardy with similar thoughts.

Despite his dissent reaching a favorable result (Congress lacking power to prohibit simple possession of a type of firearm) it was not based on reasoning that shows any indication of his take on the 2nd amendment. He might support it as an individual Right deserving of strict scrutiny. He might support it as a limit on what congress can do to hamper the states from raising militias (i.e. the collective rights view). He might view it somewhere in between those two positions. It's simply inconclusive.

His reliance on congressional findings is troubling though. If you've never paid attention, congress finds that many things are facts despite their being less than factual, or relevant. Saying that if congress provided findings that would have occasioned a new look on the case in question could be very problematic. Course that's not to say that it will be, I just see potential for using it as an excuse to avoid consideration of a constitutional question. Courts generally aren’t real happy when they have to strike down a law as being unconstitutional (& for a number of reasons) & personally I don't think they need any further excuses to duck the hard questions.

So the Rybar dissent only shows that Alito has a decent respect for the precedent laid down in Lopez. It does not show a damned thing about his notions on the 2nd amendment, or how he'd have viewed the case if congress had some finding to back up their claim that the commerce clause allowed them to pass that law. Most importantly it doe not how show he’d read the constitution if he was not obligated to follow precedent from a higher court.

We'll have to wait for the hearing it seems, but perhaps longer to see how he views the 2nd amendment.

Posted by Publicola at November 6, 2005 02:11 PM | TrackBack