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Discussion Starter · #1 ·
1996
Judge Alito dissented from a case on machine guns that held the Second Amendment as no bar to possession. He did not, however, dissent on Second Amendment grounds. The defendant argued the Second Amendment and that the Commerce Clause did not allow Congress to regulate machine guns. He also argued that since the passage of 922(o), nobody can register a new machine gun, so this is a ban, not regulation of commerce.

Good arguments. The Third Circuit slapped him down. Citing U.S. v. Miller, the court stated, "Rybar has not demonstrated that his possession of the machine guns had any connection with militia-related activity."

U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996).

Judge Alito dissented.

It is way too long to post here in its entirety, but here are some highlights, and I will post a link to the entire opinion below. It is all regarding Congress' Commerce Clause powers under Article 1, Section 8.

His opening line:

Was United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

. . .

This would not preclude adequate regulation of the private possession of machine guns. 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.

. . .

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.

. . .

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, 514 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.

. . .

The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? [FN4] Is the possession of a firearm within a school zone somehow less "economic" *292 and "commercial" than possession elsewhere--say, on one's own property? [FN5] If there are distinctions of constitutional dimension here, they are too subtle for me to grasp. It seems to me that the most natural reading of Lopez is that the simple possession of a firearm, without more, is not "economic" or "commercial" activity in the same sense as the production of wheat in Wickard and that therefore such possession cannot be regulated under the Wickard theory.

. . .

In sum, we are left with no congressional findings and no appreciable empirical support for the proposition that the purely intrastate possession of machine guns, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce, and without such support I do not see how the statutory provision at issue here can be sustained--unless, contrary to the lesson that I take from Lopez, the "substantial effects" test is to be drained of all practical significance.

. . .

Without congressional findings or empirical support, it is not possible for appellate judges, who are not experts on firearms, machine guns, racketeering, drug trafficking, or crime in general, to verify in any intellectually respectable way that there is a reasonable case to be made for the proposition that the intrastate possession of firearms substantially affects interstate commerce.

?

He does not mention the Second Amendment.

Since that was a holding of the majority, can we assume he agrees with the majority's position on the Second Amendment?
 

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Discussion Starter · #2 ·
Link to the entire case
For those inclined to read the whole thing:

http://caselaw.lp.findlaw.com/scripts/g ... 1480p.html

The Third Circuit Position
Although most circuits have ruled that the Second Amendment is a "collective" right only (the Fifth Circuit is the only "individual" right Circuit - see Emerson), the Third Circuit has some hybrid sort of test that has not held that it is a collective right, but they require a showing of a relationship to a militia (see the quote above).

Maybe Judge Alito felt no need to dissent from such a holding.

Any opinions?
 

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Discussion Starter · #4 ·
Hmmm . . .

OK. Well, I provided the cite, and I do not know yet where else it may be. I think there is a way to get it all on Findlaw . . .
 

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On the first read it seems as if Alito is the only one who is actually thinking about the law and not merely searching for cases that allows a certain point of view.

For Alito, he does at least think about what the other courts ruled and why they are correct or incorrect, instead of the majority who said we are correct because other courts agree with us.

Although Alito did not go into the Majority's opinion on the 2A being individual, collective, or for use in a militia, he does say that banning firearms should be left up to the states and not the Feds unless the Feds can show that
"there must be a reasonable basis for concluding that the regulated activity (the purely intrastate possession of machine guns) facilitates the commission of these crimes to such a degree as to have a substantial effect on interstate commerce. "
And a speech by Ted Kennedy is not enough.

Now with that said I also realize that this is in the context of someone interpreting prior rulings and not what Alito may really think. So I would have to give him points for following the rules of law such as Congress and the SC have given, and when no such rule was provided he did not guess as to what it might mean. If none was provided, none can be inferred so he ruled against. In this the only case I have read, he does not seem to be an activist judge, instead he properly used case law to come to a logically sound conclusion.
 

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Discussion Starter · #7 ·
Man with a Gun - Terry Stop

While Alito did not actually write this, he joined in the opinion (which indicates approval).

This case, U.S. v. Nelson, 284 F.3d 472 (3d Cir. 2002), involved a person who was properly stopped and arrested as a felon with a gun. Cops were on the lookout for this guy, who was committing multiple armed robberies "up and down the street." When the police saw him and stopped him to investigate, he had his gun openly visible, stuck into the front of his waistband.

Some people are just too stupid to stay out of prison.

Anyway, the robber appealed, arguing that the recent JL case from the Supreme Court did not allow officers to stop him (JL involved an anonymous tip that someone had a gun - Court said that is not reasonable suspicion to stop someone). The Third Circuit, including Judge Alito, therefore examined when it is proper to Terry stop someone who has a gun.

Within this context they examined Valentine and Ubiles, two cases in which officers stopped a man with a gun. In Valentine the stop was upheld as proper, in Ubiles, it was not. I have posted these cases here before.

Anyway, Alito joined in the opinion, and here is the relevant part:

In upholding the stop as reasonable [in Valentine], we distinguished United States v. Ubiles, 224 F.3d 213 (3d Cir.2000), a case factually similar to Valentine. In Ubiles, a man approached a group of officers during a festival to indicate that there was a man in the crowd whom he had seen with a gun [does this scenario sound familiar to packing.org visitors?]. The officers frisked the identified man and recovered a gun. However, in the Virgin Islands, such gun possession is not illegal, and the informant never alleged that any illegal activity had occurred or would occur. Id. at 215. In drawing the distinction, we emphasized that officers can consider the time and area, as well as suspicious responses--in Valentine, the walking away upon seeing the officers--in determining whether suspicion is reasonable. Id. at 356-57. Additionally, we noted that in Valentine, unlike in Ubiles, the mere possession of a gun without a permit was illegal. Id.

So, there we have Alito's position on Terry stops in a man with a gun call.

Alito did not write this opinion, but joined it. likewise, he had no part in Ubiles. I should note that a rather conservative judge from Georgia (William O'Kelley) was sitting in on the three judge panel in Ubiles.
 

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Discussion Starter · #8 ·
I thought this was worth a read for users who have joined since 2005. Should I change the title to Justice Alito?
 

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Discussion Starter · #10 ·
I do not think that they distinguished Ubiles very well, know what I know now about VI law.
 
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