Posted on 11/02/2005 11:06:00 AM PST by RWR8189
Here's what you should understand about the claim that Judge Sam Alito "favors legal machine guns": It's a lie.
It is also a sound bite from the Brady Campaign To Prevent Gun Violence that has been picked up by a host of pundits who would rather caricature a legal opinion than understand it.
" 'Machine Gun Sammy,' a perfect Halloween pick," is how the Brady Campaign headlined President Bush's latest Supreme Court nominee. But what the Brady activists failed to acknowledge is that Alito's dissent in the 1996 case United States v. Rybar had nothing to do with a desire to legalize machine guns and everything to do with the judge's determination to follow a Supreme Court precedent from the previous year.
In that earlier case, United States v. Lopez, the court overturned a federal law banning possession of guns within 1,000 feet of any school because the statute was an intrusion into states' regulatory arena and utterly unrelated to interstate commerce. Congress had been steadily nationalizing local criminal codes for years, and the Supreme Court finally threw up its hands and said, "Halt!"
The Constitution doesn't give the federal government the power to regulate every activity in this land, the court said. At the very least, Congress must establish some plausible link to interstate commerce.
In his Rybar dissent that is now being mocked, Alito faithfully tried to apply Lopez to a case involving the possession of machine guns. "Was United States v. Lopez a constitutional freak?" he wrote. "Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?"
Meanwhile, not only did Alito point out how Congress might remedy the law's fatal flaws, he also noted that the "Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done."
Alito didn't favor legal machine guns. He favored abiding by the supreme law of this land.
Based on solid statistical evidence, the Brady fools want more Americans to die. Elitists excepted of course.
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 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.
"Here's what you should understand about the claim that Judge Sam Alito "favors legal machine guns": It's a lie."
Aw rats. Well I guess no one is perfect. Next nominee, though when Stevens dies!
Even if he did favor machine guns, what is the problem?
More pre-owned horse feed from the Bray-dee bunch.
ping
You mean pre digested, don't you?
That's what I say. SO WHAT.
see tag line
Machine guns are legal to own in 35 states (or thereabouts). As long as one gets approval from the BATFE (which can take a couple of years), the "chief law enforcement officer on the locale", and pays the transfer tax, a pre-1986 machine gun can be yours if you have the big bucks to buy one. (the cheapest models, WWII vintage, are around $7000).
If the horse "owned" it, digestion is implicit.
Pre-owned sounds more cosmopolitan.
;^)
BTTT
That's why that magazine never appealed to me. I'm more a Range and Country Living type.
Yep. The 1994 Federal law outlawing "machine guns" was wholly unnecessary (besides illegal). My stoo-pid state, IL, outlawed full auto weapons around 1980. And that's the way is should be, a local (state) issue.
If you're out in the middle of Montana who gives a rats patoot if you're emptying a belt from a .30cal Browning, or a 50 round magazine from an AK-47. It's not like you'll wake the neighbors.
Oh but they did, and do.
The day he was nominated a Freeper gave a link to a thread at the DU, they were apoplectic. They were literally screaming about: "MACHINE GUNS. He wants to legalize MACHINE GUNS!"
It was quite funny.
I thought so too, but no not any more. I found that out in reading the Rybar case.
Section 922(o) of Title 18 of the United States Code provides,In 1994 Congress outlawed them by the above law. And the IRS no longer accepts the Transfer Tax. They stopped that even before the 1994 law so you were in a legal limbo between 86 & 94.
- (1)Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
- (2) This subsection does not apply with respect to
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before [May 19, 1986].
So now you can't sell one that may have been grand fathered in as you can't pay the tax. That was all part of the original Rybar case and the appeal.
well, I wish he did favor decriminalizing the new production/import and sale of machine guns.
In 1994 Congress outlawed them by the above law. And the IRS no longer accepts the Transfer Tax. They stopped that even before the 1994 law so you were in a legal limbo between 86 & 94.
So now you can't sell one that may have been grand fathered in as you can't pay the tax.
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