The Volokh Conspiracy - 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. § 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"?

	[Eugene Volokh, November 5, 2005 at 2:44pm] Trackbacks 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. § 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"?