Alito
 

Can someone, especially a legal expert, give me a read on this guy?

The talking heads are spinning hard and their positions appear to be dependent on where they sit.

How is he on the Constitution, particularly the 2nd Amendment?

Thanks!

TR

I am by no means a legal expert but I like the fact that his nickname is "Scalito". If he turns out like Scalia I'll be tickled pink.

A quick google search came up with this:

http://volokh.com/archives/archive_2...tml#1130566924

No exactly what I wanted but there is some promise there. Maybe one of the leagal beagles with access to nexus-lexis can take a look at the case cited and form a more intelligent opinion of his position.

Will reply later, but I've heard he is very conservative. The kind of guy you'd want. But I'll read some of his stuff and let you know for sure, as I am not personally familiar with his opinions.

The full text of the Rybar case is accessible from that link. It is, as notes, primarily a Commerce Clause case, and Judge Alito does not address the Second Amendment cliam. But the fact that he takes Lopez seriously is a good sign.

After I posted I realized that you could access the full text from the link. What I lack is the legal knowledge to understand the import of his ruling.

As I understand it, it was a states rights issue, with Alito saying the Feds should get out of restricting interstate commerce in machine guns and leave it to the individual states to regulate.

TR

I've read this too:

In a 1996 ruling that upheld the constitutionality of a federal law banning the possession of machine guns, Alito argued for greater state rights in reasoning that Congress had no authority to regulate private gun possession. :cool:

Link:http://www.cnn.com/2005/POLITICS/10/....ap/index.html

CNN seems to think that machine guns are banned all-together, but then again, they're CNN . . .

http://armsandthelaw.com/archives/20...o_and_guns.php

A little more on Alito and guns.

also,

http://www.newworldman.us/archives/2..._primer_1.html

An Alito Primer.

As for the 2nd Amendment: the Brady Campaign calls him "Machinegun Sam". That should sum it up nicely.

Edit to add: At least he's not going to have to take a crash course in Constitutional Law, unlike Miers. While I'm sure she is an outstanding lawyer, she had no business getting nominated to anything higher than a US District Judges Office. I won't hijack the thread with a "What was he thinking?"

Edit: I just finished reading some of his decisions. The areas where he referred to the legislature(s) were not directly at issue in the decisions. He's good to go in my book.

We just finished Commerce Clause and Lopez a couple of weeks ago, and I just read Rybar, including Judge Alito’s dissent, so I’ll add some more law student-speak.

The Commerce Clause is located in Article I, Section 8, Clause 3 of the Constitution:

“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

There are several ways to analyze the Constitution, one of which is structural analysis, i.e., where the language fits in the architecture of the document. Article I grants power to Congress, and follows the general structural theme consisting of a vestiture clause, followed by housekeeping provisions, detailed powers, and finally limits on power. The Commerce Clause lies in the detailed powers section, thus it is clearly an enumerated power of Congress.

In our system of federalism, power is shared between the federal government and the states. This is a vertical delineation of power, whereas separation of powers among the branches of government can be thought of as a horizontal delineation of power. The question has always been what is the extent of this congressional power, namely, what can the federal government regulate, and what should be left to the states?

The Framers inserted the Commerce Clause to allow the federal government to prevent states from enacting restrictive trade regulations hostile to other states, thus promoting a smooth national market. As the nation developed and problems which required national attention arose, the Commerce Clause became a useful device with which Congress could intervene. Starting from the New Deal era on, The Supreme Court deferred to Congress and did not limit the reach of its commerce power.

That run of congressional power ended in 1995 with the Court’s decision in United States v. Lopez, 514 U.S. 549 (1995). In a 5-4 opinion delivered by Chief Justice Rehnquist, the Court held that the Gun-Free School Zones Act of 1990, which made it a federal offense to possess a firearm in a school zone, exceeded Congress’ commerce power. The majority chose a more literal reading of the term commerce, and found that it was too much of a reach to connect possession of a firearm in a school zone to interstate commerce.

The Court identified three categories of activity that Congress may regulate:
1) Use of channels of interstate commerce
2) Instrumentalities of interstate commerce, or things and people
3) Activities having a substantial relation to interstate commerce

In United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), the defendant challenged his conviction for violating 18 U.S.C. §922(o) (making it “unlawful for any person to transfer or possess a machinegun.”) on the basis that the district court was wrong in rejecting his commerce power challenge to the provision. There’s also a 2nd Amendment challenge, but I won’t be able to get into that until the spring.:) The majority held that §922(o) was within Congress’ commerce power. The court cited a long list of legislative history behind a series of congressional statutes related to firearms to reach a conclusion that possession of a machinegun sufficiently impacted interstate commerce (the third category from Lopez) such that Congress may regulate it. The court distinguishes Lopez by finding in that case Congress attempted to regulate possession of firearms only inside school zones, making it less likely to have an impact on interstate commerce, whereas in the present case the regulation of machineguns is over a wider area.

Judge Alito, in his dissent, argues that Lopez should control, as AL mentioned. He finds that the regulation of intrastate firearm possession in the present case is similar to the possession of a firearm in a school zone. Judge Alito also finds the legislative history does not show enough to link the intrastate possession of firearms to interstate commerce, thus failing the category 3 test.