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Brady Campaign Misrepresents Judge Alito's Position on Machine Gun Possession:

Here's the Brady Campaign's press release, from last Monday:

[Title:] 'Machine Gun Sammy,' a Perfect Halloween Pick, Says Brady Campaign

How could it have gone in any other direction, from a White House that just gave blanket immunity to the gun industry, which refuses to bar terrorists from buying guns, that broke a campaign promise and put Uzis and AK-47s back on America's city streets, and insisted that records of gun purchases be destroyed before the sun sets on them twice?

It had to be a Supreme Court pick that favors legal machine guns. . . .

Of course, the opinion of Judge Alito's to which the Brady Campaign points does not favor legal machine guns: It simply concludes that Congress is limited in its ability to ban private possession of machine guns, and that the power to decide whether to ban such possession is left to the states. This, of course, was based on the then-recent Supreme Court decision holding precisely the same as to private possession of guns in school zones. In the opinion's words,

Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done. Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element--a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. ยง 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.

Doesn't sound like "favor[ing] legal machine guns" to me.

The press release also quotes Jim Brady as saying, "[T]he man I worked for, who gave us Sandra Day O'Connor and signed the 1986 machine gun ban, would be shaking his head." Well, Sandra Day O'Connor was one of the Court's leaders in reasserting the limits on federal power. Under the Brady Campaign's logic, Justice O'Connor must "favor legalized possession of guns in school zones" — and of course she must "favor legalized violence against women," since she also voted to strike down the federal Violence Against Women Act on the grounds that such matters are the constitutional province of the states.

Yet presumably, if Jim Brady is praising Sandra Day O'Connor, he must not really think that she "favors legalized possession of guns in school zones," and he must not be ready to dub her "Guns-in-School-Zones Sandy" — he must understand that her vote had to do with who decides what to do about possession of guns in school zones (the states or the federal government), and that states would remain free to outlaw such possession. Why then does his organization say that Judge Alito "favors legal machine guns"?

PersonFromPorlock:
Out of curiousity, doesn't Miller pretty much extend Second Amendment protection to machine guns as militia-type weapons?
11.5.2005 4:08pm
SomeJarhead (mail):
10 U.S.C. 311

Among others.
11.5.2005 4:21pm
Steven Jens (mail) (www):
Does "added a jurisdictional element" mean "made the law only apply in interstate cases"? Or did I misunderstand that clause?
11.5.2005 4:57pm
Sebastianguy99 (mail):
I have a question? Why is it that one would expect the general public to understand or appreciate legal distinctions?

I am not saying that people are dumb. I just think it is too much to expect that those without legal training are going to be able to accept a legal answer to what is a political question now.

He is now in the political arena where the potential real world consequences of his decisions are fair game. To the ordinary citizen, the question is not about the Commerce Clause, or federalism. It is whether or not they are going to be living around people with machine guns.
11.5.2005 5:05pm
juris imprudent (mail):
I am shocked, shocked I say, to find the Brady Campaign misrepresenting the facts.

In reality, I'm shocked when the Brady Campaign even recognizes a fact.
11.5.2005 5:10pm
Greedy Clerk (mail):
Wait a second Perfesser. I am shocked, just shocked.

Are you saying that a political group did not make fine legal distinctions in a judge's opinions and instead decided to simplify the judge's analysis as much as possible in order to scare those who donate to the group and spur on donations???? I'll be damned.

Note to the perfesser: I'd take this more seriously if you acknowledged that those on the right play the exact same game. Like the constant refrain from your hero George W. that "left-wing actervists are trying to judgify away Christmas" . . . .
11.5.2005 5:12pm
Dave from Woodstock:

Why then does his organization say that Judge Alito "favors legal machine guns"?


Because the Brady Bunch isn't interested in civil rights, Constitutional protections, the truth or facts. They want to make gun ownership illegal for everyone and will stoop to anything to achieve that end.
11.5.2005 5:17pm
Cornellian (mail):
Does "added a jurisdictional element" mean "made the law only apply in interstate cases"? Or did I misunderstand that clause?

You understood it correctly. Basically the decision is saying the statute would have been sustainable as interstate commerce if the statute had provided some hook to link the gun possession to interstate commerce, e.g. if it had provided that it applied to guns manufactured in one state then transported to another state, or something like that. If you try hard enough with these jurisidictional clauses, you can sweep in virtually everything that would have been covered by a flat out ban.
11.5.2005 5:22pm
Jack S. (mail) (www):
Professor, how about some citations to your quotes? Would help us be able to read the opinion for ourselves and make up our own mind without having to test our rudimentary legal research skills. (U.S. v. Rybar 103 F.3d 273 (C.A.3 Pa.,1996) to save you some time) I assume when you mean recent Supreme Court holding you are referring to U.S. v. Lopez..say it then. You would expect the same of your students.

not "interested in civil rights, constitutional protection...". this is quickly boiling down to the pots and the kettles all calling each other black.
11.5.2005 5:26pm
Sebastianguy99 (mail):
"They want to make gun ownership illegal for everyone and will stoop to anything to achieve that end."


Well I think Greedy Clerk's point has been made.
11.5.2005 5:28pm
Dave from Woodstock:
Sebastianguy99

Well I think Greedy Clerk's point has been made.


Do you really doubt the Brady Campaign is an ends driven organization?
11.5.2005 5:41pm
Dave Hardy (mail) (www):
A jurisdictional element would be something along lines of ... it is illegal to possess a machinegun in or affecting commerce. Then the commerce link is an element of the offense and must be proven.

The other route he suggests is to have a congressional finding that ALL possession affects commerce, for some reasons. I haven't gone back and done the research on this issue, but I seem to recall that Lopez indicates it requires more than an incantation, and earlier caselaw treats the findings as something that ought to be established by the congressional hearings (that is, the findings just avoid the necessity of proving the claim in court every time a prosecution is brought). Lopez also indicates that "crime may raise insurance rates, etc." doesn't cut the mustard.

Personally, I'd find it hilarious to have Congress try to figure out a finding that would justify 922(o). Considering that all my research indicates that there are two views on how often registered MGs have been used in crime: (1) never, or (2) some people say there was one case, twenty or thirty years ago. Which, I might add, did not involved anything associated with interstate commerce.
11.5.2005 5:45pm
Bruce Wilder (www):
Reducing these disputes to misleading bumperstickers is unfair, but that criticism does not let Alito off the hoof for what is, in fact, an appalling opinion.

As Dave Hardy points out, Alito does not actually say he thinks Congress has exceeded its Commerce Clause authority in banning the sale of machine guns (which Congress has regulated/taxed) for a long time; instead, he opines that Congress should have made a ritualistic finding of some kind in the legislative history of this specific ban, to justify application of its commerce clause authority. That is not judicial review, it is tantamount to a judicial veto -- not unlike the power of the House of Lords to delay legislation. Alito would let a lawbreaker go, while Congress is sent back to the drawing board, not to amend the law, per se, but to amend the legislative history (!) of the law. In effect, Alito appears to think Congress needs to jump thru some specific hoops, over and above a majority vote in accord with house rules, (and, of course, the absence of a Presidential veto).

It really is outrageous, but not because the substance involves a machine gun. It is outrageous, because after 70+ years of regulating automatic weapons sales, and of expansive commerce clause jurisprudence, Alito decides that Congress should have to jump thru some hoops, in order to regulate the sale (SALE!) of anything, for which there has been an active interstate trade/traffic.

To expand the scope of judicial review into a judicial veto, where the Courts are requiring Congress to make specific findings to justify passage of laws, really is scary. That Alito did, essentially, the same thing in the Family Leave case (albeit, with better precedental support) suggests a dangerous pattern. This is not a constitional innovation, which should be reinforced by having an advocate on the Supreme Court.
11.5.2005 6:11pm
Earl Thomas (mail):
Why is it unfair(since when has politics been fair)...and why are people refusing to refute the political argument?
11.5.2005 7:00pm
Stephen Aslett (mail):
To quote Captain Renault from Casablanca, I am shocked--shocked--to find that interest groups aren't interested in the legal bases for judicial decisions.

I know it saddens us, law students, lawyers, professors, and members of the public just really interested in the law, but the fact is that most of the country doesn't give a damn about constitutional law. Commerce Clause--what's that? Why don't you care about raped college students and desert toads? Most interest groups and pundits--even those with law degrees--are no different.

Can you imagine, for instance, trying to engage Ann Coulter in a debate about the 11th amendment? Or reason with Bill O'Reilly about United States v. Booker? I don't think so. (And no, I'm not leaving out left-wing pundits too--Michael Moore comes most immediately to mind.) To most Americans, I imagine the Supreme Court is a mythical institution that issues pronouncements from on high, and goodness knows how they reason towards them.

Ours is no different from any other study really--medicine, engineering, astrophysics, etc.--that confounds the general public. I think the (unfortunate?) difference is that it's easier for a person to have a seemingly-intelligent opinion on a legal issue (e.g. the constitutionality of abortion) without any legal reasoning backing up the position than it his to have a seemingly-intelligent position in other fields.
11.5.2005 7:22pm
David Sucher (mail) (www):
Sometimes a cigar is just a cigar.
If you vote to allow machine guns to be sold -- no matter the theory -- you are allowing machines guns to be sold.
Yes I do understand the issues of Federalism and "penumbras." I simply don't believe that such rules are used consistently.
So change the context: does anyone really think that a conservative's vote against abortion is principled and based on a non-belief in Federal jurisdiction, a "right to privacy" etc etc" I read it as a vote against abortion. Period. And if such view would gain by finding a privacy right in the Constitution, it would be there is a flick of the eye.
11.5.2005 7:29pm
Barry Dauphin (mail):
Do the Brady people have no shame? Using a title that depicts an Italian American with the same kind of language used to describe a 1930s mobster, jeez.
11.5.2005 7:46pm
JMRobinson (mail):
"If you vote to allow machine guns to be sold -- no matter the theory -- you are allowing machines guns to be sold."

So if you vote the federalist position in an abortion case, and subsequently a state decides to endorse abortions, does that mean you "voted to support abortion"?
11.5.2005 8:15pm
Bruce Hayden (mail) (www):
First, you probably could get Ann Coulter to argue the 11th Amdt., because she is, at least tokenly, an attorney, and is interested in the debate about Judge Alito. I have no doubt that she will be asked about these decisions on TV some time in the next couple of months, and will have done enough homework to be able to mention some of these things. After all, she revels in having the facts over the liberals who debate her.

But more to the point - what those who suggest that he was just being conservative here are ignoring is that this case was decided in the shadow of Lopez, which had just struck down federal jurisdiction over guns near schools on Commerce Clause grounds. He asked the logical, at least to me, question of why a handgun at a school would not be considered interstate commerce, but a machine gun in a home would be. At least to me, if a gun is a gun, then a home would be further from interstate commerce than a school.

You can see though where Brady is coming from, when they are talking about putting Uzis and AK-47s back on the street. They are talking about the Assault Weapon ban, which, of course, never covered machine guns in the first place, and, thus, had nothing to do with fully automatic Uzis and AK-47s (and semiautomatic ones are no more dangerous than most other semiautomatics).
11.5.2005 8:53pm
Glenn W Bowen (mail):
Sebastianguy99-

I just think it is too much to expect that those without legal training are going to be able to accept a legal answer to what is a political question now.


and


To the ordinary citizen, the question is not about the Commerce Clause, or federalism. It is whether or not they are going to be living around people with machine guns.


that reduces the issue to one of a legality versus a popular idea or trend; the constitution, and the supreme court, hopefully, are a check against populism.
11.5.2005 8:58pm
DNL (mail):

Sometimes a cigar is just a cigar.
If you vote to allow machine guns to be sold -- no matter the theory -- you are allowing machines guns to be sold.


The key word, obviously, is "sometimes." After all, let's say your sister was accused of molesting her son. There's a statement she made to her lawyer, which, taken out of context, heavily suggests she is guilty. You, she, her lawyer, and any reasonable observer would agree that the statement -- even if explained -- would paint her in such a bad light that even Marcia Cross could get a conviction. The trial judge lets it in, ignoring attorney-client privilege, and as expected, your sister has lost her liberty, children, and reputation.

The appellate court judges would likely believe that your sister, indeed, is a child molestor. Should they apply the law, and overturn her conviction? Or is this one of those sometimes that a cigar is just a cigar?
11.5.2005 8:59pm
JonC:

Can you imagine, for instance, trying to engage Ann Coulter in a debate about the 11th amendment?


Actually, Coulter could probably hold her own in that debate, considering she was law review editor at UMich and clerked for a federal appellate court judge.

Re: Bruce Wilder's critique of Alito's opinion- I think that you could just as easily critique him for implicitly suggesting that anything Congress says is interstate commerce must in fact be interstate commerce. As David Hardy notes, this "incantation" requirement doesn't seem to be in line with the precedent of the time (e.g. Lopez).
11.5.2005 9:00pm
Dave Hardy (mail) (www):
Sometimes a cigar is just a cigar.
If you vote to allow machine guns to be sold -- no matter the theory -- you are allowing machines guns to be sold.


It's that approach that functions to reduce the Court, the Constitution, and confirmation hearings, to a sort of legislative action, assessed purely by the desirability of the result. And which reduces the Constitution to merely a legislative consideration, if that.

Is a judge who rejects a pornography prosecution, on First Amendment grounds, a fellow who may be subject to principled criticism for promoting pornography?

Is one who reverses a murder conviction one who "votes to let a killer walk free"?

Is a court which rejects random stops of drivers guilty of promoting drunk driving?

How about if a President exceeds his powers for some (arguably) good result. Is a court that stops it guilty of blocking a desirable policy?

Looking at the facts of the case: the relevant Congressional power is the power to regulate interstate commerce. How did the defendant's making and keeping a machinegun come within that power?

I think the notion that the federal government has limited powers has come under assault both from the right and from the left. The right wants to lock up pot smokers, because they're just like those commie hippies. The left wants to lock up others, because they're just like those rednecks. I say a legal pox on both their houses. If someone wants to grow and smoke pot (medicinal or not), or create a firearm, neither being sold in commerce, it is the business of the State, and not of the national government.

The result of regarding everything as within Congressional power is to put unnecessary pressure on the federal bill of rights, which was abbreviated precisely because the government it was supposed to restrain was supposed to be one of limited powers to begin with. Compare most State bills of rights, which are far longer and more detailed.
11.5.2005 9:29pm
John T (mail):
I simply don't believe that such rules are used consistently.
So change the context: does anyone really think that a conservative's vote against abortion is principled and based on a non-belief in Federal jurisdiction, a "right to privacy" etc etc" I read it as a vote against abortion. Period.


Ah. So you believe that Justice Scalia loves flag burning, because he voted that it was protected by the First Amendment? That Justices O'Connor, Reinquist, and Thomas are pro-drug, whereas the liberals on the Court hate medical marijuana? That the liberals love eminent domain where poor people are evicted to sell their houses for the benefit of corportations?

Of course I agree that most people, including partisans on all sides, have a results-focused point of view. But judges deserve far more credit than you're giving them.
11.5.2005 9:34pm
SayUncle (mail) (www):
<blockquote>
To the ordinary citizen, the question is not about the Commerce Clause, or federalism. It is whether or not they are going to be living around people with machine guns.
</blockquote>

Too bad for the Brady Bunch they spent so much time intentionally confusing supposed 'assault weapons' and 'machine guns.' I'd say your average non-gun person thinks machine guns are already unregulated given all the hoo-hah the bradies went throught to obfuscate the terms.
11.5.2005 10:24pm
David M. Nieporent (www):
You, she, her lawyer, and any reasonable observer would agree that the statement -- even if explained -- would paint her in such a bad light that even Marcia Cross could get a conviction.
That's pretty impressive, but I think you mean Marcia Clark, not Desperate Housewife Marcia Cross.
11.6.2005 12:28am
DNL (mail):
Damn.

Although, the point holds just as nicely with Ms. Cross.
11.6.2005 12:31am
Brett Bellmore (mail):

If you vote to allow machine guns to be sold -- no matter the theory -- you are allowing machines guns to be sold.
>

And if you vote to allow chewing gum to be sold, no matter the theory, you are allowing chewing gum to be sold. What of it? There seems to be an implication in your post that you don't bother to back up: That there's something wrong with selling machine guns.

Not an easy proposition to defend if you're into relying on evidence.
11.6.2005 5:28am
Bottomfish (mail):
The site www.mp5.net/info/sbsconr.htm has a chart showing the states in which ownership of machine guns is legal. All but eight allow machine gun ownership. There are Federal tax requirements that must be followed, but that is all there is on the Federal side. One would think that the Brady group would turn its attention to state laws as well.
11.6.2005 8:04am
Frank Drackmann (mail):
Machine gun ownership was regulated in the 1930;s the big obstacle to ownership for most people being the $200 tax and obtaining approval from the local sherrif or police chief. By the 1980's inflation had reduced the tax to a mere nuisance with the law enforcement approval still being the main headache. The ban on future manufacture in 1986(signed by Ronaldus Magnus) froze the supply and lead to the inevitable increase in prices. An M-16 that was easily available for $500(plus the tax) in 1985 is now over $10,000 if you can find a seller.
11.6.2005 9:04am
Bottomfish (mail):
My point is that if so few states prohibit ownership, then local law enforcement probably doesn't see machine guns as much of a problem. If you want to use a firearm to commit a crime, then it makes more sense to use a small light weapon that could be concealed in a baggy pants.
11.6.2005 9:45am
Bruce Hayden (mail) (www):
Bottomfish - which is why machine guns have not been used to commit crimes in this country.
11.6.2005 10:24am
Frank Drackmann (mail):
As an example of the law of unintended consequences, the machine gun industry knew that a ban was possible in 1986 and they greatly increased production in the month prior to the ban in order to get the guns registered before the deadline. The population of registered machine guns nearly doubled in that month, and after the initial scare wore off, prices went DOWN for the next few yrs, just due to the increased supply.
11.6.2005 10:57am
Dave Hardy (mail) (www):
Just a few clarifications:

The 1986 amendment (which is at issue in this case) was a last-second amendment to the Firearm Owners' Protection Act. It forbade sales to civilians of machineguns made after its enactment. All MGs made before its date may still be owned and sold (which is why I still have my Thompson). Those are governed by the 1934 National Firearms Act, which requires a $200 tax (and by paying the tax, registration) for each transfer.

Arizona's law on them is simply -- comply with federal law and you're OK. Virginia, where I once resided, had a simple state registration (and was so laxidasical about that that the state police took a week to mail me the form).

The debate over whether MGs licensed under the 34 Act have been used in crime boils down to two schools of thought: one says never, and the other says they've heard of one instance (in 70 years). So showing an impact on commerce would indeed be quite a task. Apart from the size and weight, there aren't too many criminals who will lay out $5,000-15,000 for a gun. A bank robber would probably figure that it'd take a dozen robberies before he broke even on his investment in equipment. With tellers under orders to hand over the cash, a .22 pistol is as useful as a water cooled Browning 1917, and doesn't risk the clerks calling 911 while you're setting up the tripod and feeding in the belt.
11.6.2005 11:02am
Cornellian (mail):
Wouldn't the really shocking, newsworthy story be "Single issue interest group ACCURATELY represents Supreme Court nominee's position on its pet issue?"
11.6.2005 11:15am
David Sucher (mail) (www):
I am not arguing for "results oriented" judging -- I am simply suggesting that that is the reality of how humans (e.g. Justices) behave: you mold rationality to fit the results you want. Certainly the Plessy v. Ferguson Court must have been doing something like that.

Every now and then a Justice will do something against their grain -- Scalia on flag-burning, for instance -- as a sop, a judicial "loss leader," and it helps build an image of being "principled."

Btw, I don't suggest that this is conscious, conspiritorial behavior. Nor even unusual. It's just that humans try to find reasons to justify what they want to do in the first place.
11.6.2005 12:03pm
Beerslurpy (mail) (www):

Alito decides that Congress should have to jump thru some hoops, in order to regulate the sale (SALE!) of anything, for which there has been an active interstate trade/traffic.

Youre a genius. Did you even read the opinion? Did you even read the statute to which it refers?

922(o) does not regulate the sale, transfer or manufacture of anything. 922(o) outlaws possession simpliciter of machine guns, an entirely intrastate act.

The opinion even makes the point that even if all of the posessions made illegal in 922(o) were the result of illegal transfers/sales, they were not necessarily interstate transfers.


Even if it were true that every possession made illegal by 18 U.S.C. section 922(o) were preceded by an unlawful transfer, it would not follow that every such possession is preceded by an interstate transfer, and Congress's authority under the first Lopez category concerns the passage of people and goods in the channels of interstate commerce.


Which brings us to the 3rd prong of Lopez, "substantially affecting interstate commerce." Unless Congress can show that the machine gun in my safe somehow substantially affects interstate commerce, Congress cannot regulate it. And Congress made no findings of fact with 922(o) because it was just an amendment that was slipped in at the last moment.
11.6.2005 12:21pm
magoo (mail):
People need to own machine guns to deter the guvment from confiscating their handguns.

Eugene's post was excellent, but some of the comments here are SCARY.
11.6.2005 12:41pm
Bruce Wilder (www):
Beerslurpy: You could leave the trollish abuse aside.

Like it or not established Commerce Clause jurisprudence takes a very expansive reach of interstate commerce, and has not excepted intrastate sales of anything, where there is some kind of interstate traffic. That includes making or growing your own, for personal use (e.g. marijuana). Personally, I think it is overreaching, too. [When the Rehnquist Court drew the line at firearms "possession" (within xxx feet of a school), I applauded.]

And, sale, not possession alone, was at issue in the case in which Alito dissented. The defendant was additionally charged with not paying the tax and registering the gun -- though those charges were thrown out as obsolete, they clearly establish that the transaction (transaction!) was within the established ambit of Federal authority.

It is not federalism, which, I think, ought to be at issue here, it is that Alito is trying to extend judicial review in a way, which could be very destructive.
11.6.2005 1:07pm
Sebastianguy99 (mail):
"Why is it unfair(since when has politics been fair)...and why are people refusing to refute the political argument?"


Good point.What I find the most interesting(and amusing) part about this thread is the refusal to accept political realities.

With all of the obvious brainpower here, the inability to switch from lawyer/law student mode to just plain citizen is disappointing.It might help to remember that the Constitution is also a political document so it is ok to make political arguments about legal decisions.

Alito supporters must face the fact that his nomination now places his decisions, and more to the point,the real world consequences of those decisions,in the political realm.

No matter their validity, arguments about jurisdiction, statutory construction, federalism, the Commerce Clause, are a wate of time now.The Republican party has spent decades instilling in the mind of the public that notions such as "strict constructionist", "won't interpret from the bench", are coded signals for certain desired outcomes.

I know I'll be branded a heretic, but I believe all(or at least all that the judge cares about) decisions are outcome-oriented.When looking at the body of their work ,none of these justices are going to render decisions that are not high correlated to their political beliefs/orientation. That is why there is going to be a fight, and rightfully so.
11.6.2005 1:15pm
Beerslurpy (mail) (www):
His dissent in Rybar was a faithful application of the Lopez precedent. Your "expansive interpretation" of interstate commerce found in Raich DIDNT EXIST YET. Lopez was the most recent and most pertinent Supreme Court precedent for Rybar to follow. Both 922(o) and 922(q) were a federal firearms possesion statutes with no specified locus of interstate commerce. 922(q) was struck down in Lopez. Alito applied the same reasoning in his dissent arguing that 922(o) is no different. You disagree with that, but the reasons you give are based on a misrepresentation of fact.


And, sale, not possession alone, was at issue in the case in which Alito dissented.


Finding fault with you is not trollish abuse as long as you continue to present these flawed arguments. The law that governed the transfer or sale of machine guns has been found unconstitutional numerous times since the passage of 922(o), on 5th amendment grounds. The lower court said as much, and this is specifically mentioned in the majority opinion of Rybar. (below)

At the hearing on the change of plea, the district court
first ruled on the pending motion. The court granted the motion
to dismiss Counts II and IV. The court held that insofar as 26
U.S.C. section 5861(e) criminalizes the transfer of an
unregistered machine gun, it is unconstitutional because

[a]fter Congress enacted Title 18 of the United States Code
Section 922(o), registration of machine guns is no longer
possible. Thus defendant has been charged in the indictment
with failing to perform an act, registration of two machine
guns, that is prohibited by law. This violates notions of
fundamental fairness as guaranteed by the Due Process Clause
of the Fifth Amendment. Further, this Court finds that
Section 5861(e) is no longer a valid taxing statute with
respect to machine guns, because the government currently
does not register and tax such machine guns.

922(o) requires only posession. It does not matter if the violation was discovered as the result of a sale or if a ouija board provided evidence of the possession. Sale was emphatically NOT the issue being argued before the court.
11.6.2005 2:17pm
Heartless Libertarian (mail) (www):
Maybe I'm a bit off here, but I was under the impression that the defendant in Rybar actually built the MG, or at least the component that the ATF considers to legally be the MG, himself, which would make the case almost identical to Raich andUS v. Stewart

And to answer the first question asked, machine guns would almost surely meet the "militia usefulness" test established in Miller, but I don't think anyone has ever tried to argue a case on those grounds.
11.6.2005 3:20pm
Bruce Wilder (www):
Beerslurpy, your powers of reasoning and reading comprehension are far beyond mine.
11.6.2005 3:20pm
Glenn W Bowen (mail):

With all of the obvious brainpower here, the inability to switch from lawyer/law student mode to just plain citizen is disappointing.


once again, the issue is not populism.
11.6.2005 3:25pm
Beerslurpy (mail) (www):
I wish people wouldnt use the word "populism" because I keep thinking of the political movement from the early 1900s.

The issue of whether or not the people have instructed Congress to pass this law is irrelevant.

The question is whether Congress has the authority to legislate in areas of law traditionally reserved to the states.

The court said emphatically "no" in Morrison and Lopez and gave the reason that certain areas were simply off limits to Congress. In Morrision and Lopez, this was "non-commercial, intrastate criminal conduct" namely forcible rape and firearms posession respectively.

This same court then reversed itself (Kennedy and Scalia defected to the new majority) and held that as long as Congress merely claimed some remote connection to interstate commerce, the law was OK.

Part of me suspects that Raich was a results oriented dodge because most of the SC judges didnt want to end the war on drugs in a single day. Finding the Controlled Substances Act unconstitutional as applied to purely non-commercial intrastate activity would have had far-reaching consequences.

I predict that this supreme court will find some pretense to ignore or set aside Raich so that the Lopez revolution can continue. The real decider will be how Kennedy feels about this or who the next supreme court vacancy is.
11.6.2005 4:15pm
Bill R:
Sebastianguy99, you assert that

I believe all(or at least all that the judge cares about) decisions are outcome-oriented.When looking at the body of their work ,none of these justices are going to render decisions that are not high correlated to their political beliefs/orientation.

Yet juries are asked to do just this in criminal cases every day. I sat on a jury where we found the defendant "not guilty" on half (3 of 6 counts) of the charged counts of "spousal rape" because the prosecutor had failed to meet their burden of proof on those specific counts - even though we believed he probably was guilty of them. We all wanted this guy to go to jail (and perhaps experience some inmate rape - a certain justice there...), but the prosecutor just failed to ask the witness (the wife) enough questions to establish guilt beyond reasonable doubt on three of the counts.

Surely if a jury of typical citizens can put aside their feelings and decide just on the letter of the law, trained judges can do so as well.
11.6.2005 4:25pm
AF:
Bill R: You can't compare judges interpreting constitutional law to juries finding facts.

I'll add my voice to those defending the legitimacy of interest groups holding judicial nominees accountable for the results of their decisions. To defend that position, it's not necessary to argue that judges merely apply their policy preferences. If I care about a policy-- gun control, or flag-burning bans, or whatever -- I can legitimately urge my elected representatives to support judicial candidates whose decisions will help rather than harm that policy. So, even though Scalia probably doesn't personally approve of flag burning, an interest group that was dedicated to banning flag burning would have every reason to oppose Scalia.

Of course, this does not mean that interest groups are always right to take any given position on a nominee. In this case, though, the Brady Campaign probably is right to think that Alito will be bad for gun control. (And that's true regardless of, in his heart, he is anti-gun, or pro-federalism, or both.)
11.6.2005 4:58pm
Xrlq (mail) (www):
Here's a neat gem from their press release:

In 1996, Judge Samuel Alito was the sole judge who dissented from his Third Circuit Court of Appeals colleagues when they upheld the authority of Congress to ban fully automatic machine guns.


Got that? He didn't just dissent from the rulings of a three-judge panel, he was the "sole" judge who dissented. Apparently the Bradys aren't good enough at math to understand that if two or more of three judges sign on to an opinion, it's not considered a "dissent." Unfortunately, they're not alone in this rhetorical trick; check out this S.F. Chronicle article, which identifies Alito as the "lone" dissenter in that case, and then goes on to falsely claim no other federal court has ruled that way (cf. USA v. Stewart, 2003).
11.6.2005 5:01pm
juris imprudent (mail):
AF-

Then what meaning does a constitution have? Simply whatever policy preferences are placed upon the bench over time?

The judiciary is NOT supposed to function like the legislature - swaying this way and that. They are indeed supposed to take unpopular stances, against the popular will (unless that will be sufficient to amend the constitution). Judges should avoid, as much as they can, questions best answered by the political process. But the federal judiciary must be the leash that keeps Congress within it's Constitutional bounds (since one can hardly expect Congress to self-police in that regard).
11.6.2005 5:06pm
Bill R:
AF, my comparison between SCOTUS judges in their role of resolving constitutional issues and fact finding juries was simply that if fact finding juries are expected to put their own biases and "outcome based" desires aside, surely we can expect the same of SCOTUS judges. I didn't mean to imply that the two tasks are particularly similar in other dimensions.

I too would expect some interest groups who have been (or expect to be) unsuccessful in legislative attempts to further their causes to support SCOTUS judges who might do so from the bench. Certainly such groups have every right to do so - just as others of different persuasions have every right (and perhaps a social responsibility) to point out any such attempts to subvert the governing process.

Admittedly I'm biased as an overriding special interest of mine is that SC justices apply the Constitution (first) and legislative law (second) while leaving legislation and policy to the elected politicians. For example, I like the outcome of Roe v. Wade - but think the court's decision on this was wrong. If Roe is overturned, I would almost certainly vote for a California initiative which ensured that adult women were legally allowed to have abortions in the first trimester of pregnancy.
11.6.2005 6:07pm
alexandra (mail):
We consider machine guns a family value
11.6.2005 6:10pm
David Sucher (mail) (www):
Some seem to be offended by my suggestion that the Supremes are political.
Question:
Does anyone truly believe that Supreme Court Justices are appointed without some expectation (or at least hope) that they will rule in favor of certain political outcomes?
The idea is preposterous.
And if the Founders had expected otherwise they would not have had the POLITICAL bodies do the appointing &advising/consenting.
Of course the Supreme Court is a political body.
Please get used to it.
11.6.2005 10:12pm
Sebastianguy99 (mail):
"Then what meaning does a constitution have? Simply whatever policy preferences are placed upon the bench over time? "


It means whatever a majority on the Supreme Court says it means....that is the point.

It really is amusing to read the comments of those who just can't quite accept political reality. Perhaps this nomination will be of some educational value for those still in denial.

Then again, it might just help to engage in conversation with a nonlawyer(or student). Nothing like having a healthy perspective.
11.7.2005 12:17am
AF:
Actually, my point was that even if you believe the Constitution means something other than what 5 justices say it means, that doesn't mean you can criticize a political organization for opposing judges whose decisions harm their cause.
11.7.2005 8:05am
Sebastianguy99 (mail):
AF,

I stand corrected.
11.7.2005 2:56pm
TL:
When will people and groups stop doing this? I feel like the Left is even worse about this than the reactionists on the right. The logic follows something like this. Commerce Clause > interstate commercial activity > Congress can regulate. Judge who applies the Commerce Clause = a radical with an agenda against whatever action Congress takes. (In this case, Judge Alito wants "machine" guns to be on the streets).

Truly awful analysis. So bad in fact that some of the above characters need to again be bludgeoned (perhaps half to death) with the Federalist No. 78. Judgment, good people, judgment before WILL from my judges anyday.
11.7.2005 5:27pm