"What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling."
The words in bold are a killer if true. You may not like it, but it just is. Heck, the rationale was based on the commerce clause and not the second amendment. Bush would make a second mistake to nominate this guy, if the words are true, unless there is some nuance I am missing.
That sounds a lot like the reasoning used to throw out the Violence Against Women Act. If anything it shows a Renquist like reasoning.
If it was based on the commerce clause, then it would be more palatable to non-conservative people, because it would still leave open state regulation of machine guns.
By the way, I answered my own question about Luttig and Roe. I found this at Slate.com:
At that point, he explained that at the time of his initial decision to let the Virginia ban stand, he understood Casey to be "a decision of super-stare decisis"—meaning super respect for precedent—"with respect to a woman's fundamental right to choose."Two words: RED ALERT!
I see no problem at all with Alito's dissent. If the rationale given for the law was the commerce clause, why should he invoke the 2nd amendment? Simply stating that the commerce clause was inapplicable should be sufficient to overturn the law.