Alito on Machine Guns and Interstate Commerce

Some Law Library ^ | December 1996 | Alito

[publiusF27]

In other words, the majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market.

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--then the 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.

[publiusF27]

Hmmm.. It sounds to me as if the Scalito nickname may be off the mark. "Just about anything." Now where have I heard something like that recently?

[flashbunny]

His view on this sounds closer to thomas than scalia.

Thomasito????

[publiusF27]

Doesn't have the same ring to it, but I do like it better.

[blau993]

I heard Swimmer on NPR tonight saying that Alito opposed regulation of machine guns. I assume he had not read the opinion. If he had, his legal analytical skills are even worse than his driving skills.

The majority opinion was by Dolores ("Dolly") Sloviter and Midge ("Midge") Rendell. Neither is or was regarded as an intellectual leader of the Third Circuit, or for that matter of their local garden clubs. Their majority opinion can best be characterized as "MACHINE GUNS!!!!!!!" followed by a weak feeling in the knees and bowels.

Judge Alito's dissenting decision was a surgical deconstruction of the commerce clause, the ostensible basis for the lower court's decision. The lower court said that an intrastate (all in Pennsylvania) sale of a machine gune from one person to another was illegal under a federal statute that depended on the commerce clause for its constitutional justification. Bear in mind that the police function (arresting people for crimes and saying what those crimes are) is a STATE function unless the area has been reserved to the FEDERAL government by the constitution.

The clause of the constitution most often used to justify Federal regulation and prosecution of what would otherwise be state crimes is the Commerce Clause. However, a 1995 Supreme Court decision said the Commerce Clause does not give carte blanche (pardon my French) to Congress to make a federal crime out of anything.

Alito, writing in 1996, was well aware of this case and pointed out that the Supreme Court had defined three legs to the commerce clause. The first allows the Feds to regulate actual people or goods that pass through interstate commerce. The second allows the Feds to regulate activities that will affect interstate commerce even though they may happen intrastate. The third allows the Feds to POSSIBLY regulate activities that happen intrastate if they MAY affect interstate commerce.

Alito noted that the first two clearly didn't apply to an intrastate sale of a machine gun. It didn't actually affect the interstate flow of goods or people (Number 1). It didn't necessarily affect the flow of goods and people (Number 2). These are the legs relied on by the prior Court of Appeals decisions and by the Quavering Majority in his case.

The only leg potentially implicated here, he said, was the third -- intrastate activities that MAY OR MAY NOT affect commerce. After all, somebody who buys a machine gun from somebody else in the same state doesn't buy it necessarily to shoot up interstate trains, planes or buses. If it was the third leg Congress relied on (in passing the act) or the Prosecution relied on (in prosecuting this case), what reason did they have to conclude that this intrastate (all in Pennsylvania) sale of a machine gun would have any effect on interstate commerce?

This question could have been answered, Judge Alito said, by some kind of record when Congress passed the statute (i.e., a study showing that machine guns are mainly purchased to shoot up interstate transportation facilities) or by some kind of specific evidence at trial (i.e., the guy who bought this machine gun in Pennsylvania did so specifically to shoot up a Greyhound bus bound for Ohio).

The fact that there was no record of any consideration of this issue by Congress or by the Prosecution led Judge Alito to conclude that the statute, as applied in this case, was unconstitutional.

This is hardly the horror represented by Swimmer. His misunderstanding or misrepresentation is exactly what we can expect to see from the DIM Left. However, it is EXACTLY the kind of no-nonsense realistic analysis that most of us want in a Supreme Court Justice. The DIMS fear critical thinkers. We embrace and support them.

[publiusF27]

Thanks for your reply, blau. It may be of interest to curiosity.

Wow, that sounded strange. Mr. Curiosity.

[curiosity]

Thanks for the ping. Very interesting.

I don't think Scalia would disagree with this opinion. I don't see how regulation of intrastate commerce in machine guns is necessary and proper to the regualtion of such interstate commerce.

Unlike marijuana, machine guns are not fungible. They have serial numbers. They can be traced from buyer to seller. Gun dealers can be Federally liscenced. etc.

Recall, it was the fungibility of marijuana that formed the crux of Scalia's argument that regulation of intrastate marijuana possesstion was necessary and proper to the regulation of interstate commerce in such commodity.

[publiusF27]

They have serial numbers, unless you grow your own machine guns. What would Scalia's concurrence say about that?

[Still Thinking]

I like Thomas a little better than Scalia, anyway, though I find both of them preferable to Rehnquist.

[Still Thinking]

Interesting read. Thank you.

[flashbunny]

Me to- Thomas got it right on the recent marijuana case WRT the interstate commerce clause - sclaia sided with the overreaching government.

[publiusF27]

I aim to please. Or irritate, depending on your point of view.

While I have often preferred Scalia to Rhenquist, that was before Raich and Stewart came along. I'm hard pressed to come up with an issue of such far-reaching scope and importance as the commerce clause. It's the source of federal power over almost everything, from growing your own wheat, to ending your own life, to rape, to being near a school with a gun, to possession of kiddie porn, to being a California toad, to growing your own cannabis plant or machine gun, and so many more.

Madison, Federalist 45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained."

I guess he should have said, "The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State, UNLESS of course the Congress finds some purely local, non-commercial actions which themselves do not substantially affect interstate commerce, but which, taken together with many other similar actions, are seen by the Congress as having effects on interstate commerce they are trying to regulate, in which case the Congress will take over regulation of those actions."

Yeah, I'm thinking the anti-federalists would have had a cow, for good reason.

[Still Thinking]

Yes, I agree, even Scalia has pulled a few boners. I guess I would characterize Thomas as more libertarian, and Scalia as more traditionalist/conservative. Also, Thomas doesn't mind flipping everyone else in the country the bird, if that's what needs to be done. Thus my Thomas preference.

[Ken H]

James Madison to Joseph C. Cabell

13 Feb. 1829 Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html

[publiusF27]

Where ya been, Ken? I figured the discussion of the dormant commerce clause in this thread would draw you in!

Thanks for the Madison citation. It goes well with the one from Jefferson I recently collected.

Thomas Jefferson to Albert Gallatin

13 Oct. 1802Works 9:398--99

You know my doubts, or rather convictions, about the unconstitutionality of the act for building piers in the Delaware, and the fears that it will lead to a bottomless expense, & to the greatest abuses. There is, however, one intention of which the act is susceptible, & which will bring it within the Constitution; and we ought always to presume that the real intention which is alone consistent with the Constitution. Altho' the power to regulate commerce does not give a power to build piers, wharves, open ports, clear the beds of rivers, dig canals, build warehouses, build manufacturing machines, set up manufactories, cultivate the earth, to all of which the power would go if it went to the first, yet a power to provide and maintain a navy, is a power to provide receptacles for it, and places to cover & preserve it. In choosing the places where this money should be laid out, I should be much disposed, as far as contracts will permit, to confine it to such place or places as the ships of war may lie at, and be protected from ice; & I should be for stating this in a message to Congress, in order to prevent the effect of the present example. This act has been built on the exercise of the power of building light houses, as a regulation of commerce. But I well remember the opposition, on this very ground, to the first act for building a light house. The utility of the thing has sanctioned the infraction. But if on that infraction we build a 2d, on that 2d a 3d, &c., any one of the powers in the Constitution may be made to comprehend every power of government.

[publiusF27]

Alito:
"Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms?"

Scalia:
"Not only is it impossible to distinguish “controlled firearms manufactured and distributed intrastate” from “controlled firearms manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Machine guns are fungible commodities. As the Court explains, machine guns that are built at home and possessed for personal use are never more than an instant from the interstate market–and this is so whether or not the possession is lawful under the laws of a particular State."

OK, so I have edited Scalia's words a little bit to apply them to a different subject, but that is exactly what the 9th circuit was just ordered to do.

[Ken H]

Good to see you, publius. Here are some gems from Justice Clarence Thomas in Lopez:

Put simply, much if not all of Art. I, 8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, 8. 3    

Indeed, if a "substantial effects" test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that "substantially affect" the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of 8 all mutually overlap, something we can assume the Founding Fathers never intended.

Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the "substantial effects" test should be reexamined.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=514&invol=549

[Ramius]

Exactly. I read the opinion, and I thought his analysis of the case and its abuse of the commerce clause was insightful and refreshing.

That the case was about guns or machine guns or marshmallows would not have mattered. It was all incidental. It was the misuse of the commerce clause that he wrote about, and well.

[publiusF27]

Thanks once again, Ken.

Let's hope Alito shares Thomas' view that the substantial effects test and the aggregation principle need revisiting.

[curiosity]

For reasons I've already pointed out to you, Scalia's argument regarding marijuana simply does not apply to machineguns, and the key reason is fungibility. To make the argument apply, you'd have to have Scalia say:

Machine guns are fungible commodities.

And that's simply not true. However, marijuana is a fungible commodity.

[curiosity]

Indeed, if a "substantial effects" test can be appended to the Commerce Clause, why not to every other power of the Federal Government?

That's a good point, but you seem to be missing the fact that Scalia did not base his opinion in Raich on "substantial effects," a doctrine he in fact rejects.