Posted on 01/09/2006 12:42:05 PM PST by don asmussen
Judge Alito's Dissent Arguing That The Federal Machine Gun Ban Is Unconstitutional Is Right-Wing Judicial Activism And A Threat To Federal Gun Laws
Judge Samuel Alito's dissent in U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), argued that federal restrictions on machine gun possession amounted to an unconstitutional exercise of Congressional power under the Commerce Clause. His dissent is right-wing judicial activism at its worst. Judge Alito demonstrated no respect for the considered judgment of Congress in seeking to protect the public from the obvious threat to public safety from fully automatic weapons. Instead, his opinion attempted to erect arbitrary hurdles to Congressional efforts to reduce the availability of machine guns to the criminal element.
In addition to being the dissenting view in the Third Circuit, Judge Alito's conclusion that the machine gun ban violates the Commerce Clause is so far out of the mainstream of Constitutional jurisprudence that it has been rejected by every other federal appellate court that has considered the issue, including the Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits. The Supreme Court has been asked to review lower court decisions on this issue six times and has declined in each case.
In unusually harsh language, the Rybar majority criticized Alito's dissent as having "no authority" in the law and "run[ning] counter to the deference that the judiciary owes to its two coordinate branches of government...." Rybar at 282. If his dissent were to be adopted by the Supreme Court, it could place other federal gun laws in jeopardy of being struck down at the whim of activist judges, such as laws banning guns not detectable by metal detectors or generally prohibiting juvenile handgun possession.
Federal Restrictions on Machine Guns
In 1986, Congress enacted the Firearm Owners' Protection Act, which severely weakened federal gun laws, but contained one redeeming provision banning the future manufacture of machine guns for the civilian market. It also banned the transfer and possession of machine guns not lawfully possessed before May 19, 1986, the effective date of the Act. 18 U.S.C. §922(o). These "grandfathered" machine guns remain subject to the strict registration, possession and transfer requirements and taxes of the National Firearms Act of 1934, 26 U.S.C. § 5801 et seq. Rybar's Unlawful Possession of Machine Guns On April 4, 1992, Raymond Rybar, Jr., a federally licensed gun dealer, attended a gun show in Monroeville, Pennsylvania. He possessed a fully automatic Chinese Type 54, 7.62-millimeter submachine gun, which he sold to Thomas Baublitz. The next day Rybar returned to the gun show and sold Baublitz another fully automatic firearm, a U.S. Military M-3, .45 caliber submachine gun. The guns were sold for a total of $600. Rybar pleaded guilty to two counts of unlawfully possessing a machine gun under 18 U.S.C. § 922(o), with the condition that he be allowed to appeal to allege that the federal machine gun possession restrictions are unconstitutional.
The Rybar Majority
Rybar challenged his conviction by claiming that federal restrictions on machine gun possession violate the Commerce Clause. Rybar cited U.S. v. Lopez, 514 U.S. 549 (1995), which struck down the federal Gun-Free School Zones Act as lacking Congressional findings to establish a commercial nexus between guns in schools and interstate commerce. (Congress later re-enacted the law with substantial findings of the harmful link between guns in schools and commerce « see 18 U.S.C. § 922(q)).
The majority opinion in Rybar upheld the constitutionality of the federal restrictions on machine gun possession of 18 U.S.C. § 922(o). The majority distinguished Lopez by noting that while Congress previously had not stated findings about the link between guns in schools and commerce, it had repeatedly noted an "explicit connection of the interstate flow of firearms to the increasing serious violent crime in this country" and the need to "assist the States effectively to regulate firearms traffic within their borders." Rybar at 280-81. The majority further noted that Rybar was a federally licensed gun dealer caught engaging in illegal commercial sales at gun shows. See id.
Judge Alito's Dissent
Judge Alito dissented in Rybar, stating that the federal restrictions on machine gun possession amounted, in his view, to an unconstitutional "novel law." Rybar at 294. Dismissing years of Congressional findings concerning the impact of illegal guns and criminal gun violence on interstate commerce, Judge Alito demanded that Congress and the President "assemble[] empirical evidence" for him to review in order to "protect our system of constitutional federalism." Id. at 287. In Judge Alito's view, such "empirical evidence," if provided by Congress, "might" be sufficient to persuade him to uphold the law. Id. at 287 (emphasis added).
Alito's requirement of evidentiary proof, beyond the substantial findings already made by Congress, was sharply criticized by the 5 majority as having "no authority" in the law. Id. at 282. The majority stressed that Judge Alito's attempt to create new hurdles for Congress and the President tramples "a basic tenet of the constitutional separation of powers." The majority further noted that Judge Alito's requirement that "Congress or the Executive ... play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute" "runs counter to the deference that the judiciary owes to its two coordinate branches of government...." Id. Judge Alito's insistence that Congress make empirical findings of a connection between the regulated activity and interstate commerce later was squarely rejected by the Supreme Court in Gonzales v. Raich, 125 S.Ct. 2195, 2208 (2005), when it upheld Congressional power under the Commerce Clause to regulate the intrastate manufacture and possession of marijuana for medical purposes. ("[W]e have never required Congress to make particularized findings in order to legislate....).
In a tellingly ominous note of the future impact of Judge Alito's limited view of Congressional power, he argued that his view could mean that Congress may have no power to regulate "the simple possession of a firearm," as this "is not 'economic' or 'commercial' activity...." Id. at 292.
The courts have never adopted such a view that could broadly limit the ability of Congress to control illegal gun possession. If Alito's way became the law, it could place other federal restrictions on gun possession in jeopardy, such as the ban on the possession of firearms that are undetectable by metal detectors or the ban on possession of handguns by juveniles. See 18 U.S.C. § 922(p) (prohibiting possession of undetectable firearms manufactured after the date of enactment in 1988); 922(x) (generally prohibiting possession of handguns by juveniles).
Judge's Alito's dissent in Rybar is an example of judicial activism at its worst, and if adopted by the Supreme Court, would place in jeopardy the ability of Congress to protect the public from gun violence.
"--- In a tellingly ominous note of the future impact of Judge Alito's limited view of Congressional power, he argued that his view could mean that Congress may have no power to regulate "the simple possession of a firearm," as this "is not 'economic' or 'commercial' activity...."
Alitos 'bold' comment above is reason enough to confirm him.
This guys is awesome.
I would love to get my hands on a full auto M4.
I want a full auto P-90
This makes me like Alito even more.
And the down side is......???
What kind of monster is Alito that he would attempt to erect arbirary hurdles to Congress reducing the availablity of machine guns to the criminal element! I mean, it's not like this law would have reduced the availability of machine guns to law abiding folks such as myself. We're only talking about the criminal element.
Besides, no where in the Constitution does it say that there is any right to keep or to bear arms.
A piece of crap decision that Scalia (but not Thomas) was a part of, as I recall.
It's either a real leftie loon or a misattributed Scrappleface article.
Finally, a SCOTUS justice who believes in the concept of limited congressional authority.
That's all I need to see. Alito must interpret laws through the Constitution, something left-wing judicial activists can't stand.
Confirm Alito!
ping!
To defeat the dual threats from illegal aliens and the ROP, we may crew served weapons.
Judge Alito is right!The 2nd amendment does NOT specify what guns you may or may not own!!You cannot use precedents nor the lame excuse of "public safety" to usurp the constitutional rights of the individual.Just today the "pick n choose democommies",were saying they were concerned about privacy and individual rights.
</whining>
May I please have seconds? And is there a possibility of third helpings?
Of course, someone might point out to these Leftist wankers that it isn't "activism" to use judicial review to return jurisprudence to its pre-Leftist-activist condition and practice of reviewing cases based on the original intent of the Framers and the black-letter language of the Constitution, as amended.
Restoration isn't "judicial activism", any more than painting over graffiti is vandalism.
Why did you leave out Justice Scalia?
Good. I am tired of not having the same rights as those who are fortunate enough to have this pre-ban firearm or that "BATF-Stamp-Act-Makes-It-Allowed-If-You-Got-it-Before-1976" BS.
I know that most of us will never own a nuclear bomb--but we should at least have arms that would give us a chance in a shooting war.
Exactly, ya gotta love the guy cause there is no 'down side'...
They are fun for about 7 minutes - then you get bored loading magazines and not being able to hit anything with any accuracy.
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