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. Â§ 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?