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Samuel Alito on Second Amendment
The Volokh Comspiracy ^ | 10-29-2005 | Dave Kopel

Posted on 10/31/2005 8:22:54 AM PST by Dan from Michigan

Second Amendment Tea Leaves for Corrigan, Sykes, Luttig and Alito:

In Re Four Possible Supreme Court Nominees. In the case of Love v. Pepersack, Judge Luttig concurred in an opinion rejecting a section 1983 claim for an erroneous denial of a handgun license by the state of Maryland. Judge Luttig's concurrence stated, in its entirity: "I concur only in the judgment reached by the majority, and I do so only because Gardner v. Baltimore Mayor and City Council, 969 F.2d 63 (4th Cir. 1992), is the law of the circuit." The Gardner case involved a narrow interpretation of substantive due process.

In United States v. Rybar, Judge Alito wrote a blistering dissent from the majority opinion which held that, notwithstanding United States v. Lopez, Congress had the power to use the Interstate Commerce power to prohibit the mere possession of machine guns manufactured after May 1986, even though Congress had made no findings about the effect of such machine guns on interstate commerce. Judge Alito's dissent did not address the majority's assertion that Rybar had no Second Amendment rights because Rybar was not a member of the militia.

Neither case clearly shows Judges Luttig or Alito to support or oppose the Standard Model of the Second Amendment. However, I believe that both opinions suggest that judges Luttig and Alito are, at the least, not hostile to the Second Amendment. Moreover, a generous reading of the Fourteenth Amendment, and a willingness to take Lopez seriously are in themselves good signs for persons who support judicial enforcement of the right to keep and bear arms.

UPDATE: I haven't found anything yet on Karen Williams.

Michigan Supreme Court Justice Maura Corrigan has three notable gun cases, but none sheds direct light on her RKBA views. In a 2004 case, she wrote the majority opinion in a 5-2 decision creating a "good faith" exception to Michigan's exclusionary rule. The case involved a home search that discovered a firearm and marijuana. A robust Fourth Amendment is an important secondary protection for Second Amendment rights, and the Fourth Amendment has been devastated by "good faith" loophole for the exclusionary rule, as I detail in an Akron Law Review article.

Also in 2004, Justice Corrigan joined a majority opinion reversing the conviction of a longtime Michigan gun rights activist who had sold a firearm to undercover police officers in a sting operation. Justice Corrigan agreed that because the defendant had complied with Michigan's laws regarding handgun sales, his actions were not illegal. The decision bodes well for her attitude towards some of the law enforcement abuses and aggressive interpretation of gun control statutes which have too often characterized the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In 2001, Justice Corrigan was part of 4-3 majority which applied a "strict textualist" interpretation to the Michigan Constitution, thereby negating an attempting to prevent Michigan's Shall Issue concealed handgun licensing law from going into effect. The Michigan Constitution allows petitioners to stop a new statute from going into effect by gathering sufficient petitions to put the statute to a popular vote in a general election. However, the Constitution forbids delaying the implementation of a new statute which has an appropriation therein, and the Michigan licensing law included a one million dollar appropriation for county licensing boards. As Justice Corrigan pointed out, anti-gun advocates still could have petitioned for an initiative to overturn the licensing statute; they were simply barred from preventing the statute from going into effect in the period before the next election.


TOPICS: News/Current Events
KEYWORDS: alito; banglist; guns; scotus; secondamendment
U.S. v. Rybar

It's a good start.

1 posted on 10/31/2005 8:22:54 AM PST by Dan from Michigan
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To: AAABEST; wku man; SLB; Travis McGee; Squantos; Shooter 2.5; The Old Hoosier; xrp; freedomlover; ...
Thanks for posting this, Dan.

Click the Gadsden flag for pro-gun resources!

2 posted on 10/31/2005 8:24:49 AM PST by Joe Brower (The Constitution defines Conservatism. *NRA*)
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To: Dan from Michigan

Alito is no Janice Rogers Brown, but then again he's no Alberto Gonzales, either.


3 posted on 10/31/2005 8:24:59 AM PST by coloradan (Hence, etc.)
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To: Dan from Michigan

--b---


4 posted on 10/31/2005 8:32:04 AM PST by rellimpank (urbanites don' t understand the cultural deprivation of not being raised on a farm:NRABenefactor)
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To: coloradan
Alito is no Janice Rogers Brown, but then again he's no Alberto Gonzales, either.





Justice Brown towers above just about any potential nominee and was my sole preference for the vacancy. That being said, I am enthusiastically behind this choice.
5 posted on 10/31/2005 8:33:11 AM PST by rob777
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Comment #6 Removed by Moderator

To: Dan from Michigan
Image hosted by Photobucket.com
7 posted on 10/31/2005 8:38:30 AM PST by TheRobb7 (The American Spirit does not require a federal subsidy.)
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To: Dan from Michigan

Sounds good

Thanks


8 posted on 10/31/2005 8:45:28 AM PST by 5Madman2 (There is no such thing as an experienced suicide bomber)
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To: Dan from Michigan; Joe Brower
Dan, thanks for doing the homework on this and posting it.

Joe, thanks for the ping as always.

9 posted on 10/31/2005 8:46:47 AM PST by OKSooner
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To: Dan from Michigan
While he isn't arguing that we have the right to have machine guns, he is at least taking the extraordinary step of arguing contrary to those who blindly rule against such a right. It takes guts to take just a position. Even if he opposes less regulated private possession of machine guns, he is at least providing his judicial restraint.

Imagine, even merely asking the question of whether an individual's possession of a machine gun really affects interstate commerce!
10 posted on 10/31/2005 8:51:07 AM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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To: Joe Brower

'Machine Gun Sammy,' a Perfect Halloween Pick, Says Brady Campaign

10/31/2005 11:15:00 AM

To: National Desk, Supreme Court Reporter

Contact: Peter Hamm of Brady Campaign to Prevent Gun Violence, 202-898-0792

WASHINGTON, Oct. 31 /U.S. Newswire/ -- The following was released today by the Brady Campaign to Prevent Gun Violence on the nomination of Judge Samuel Alito to the Supreme Court:

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.

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.

"Earth to Sammy -- who needs legal machine guns?" asked Jim Brady, chair of the Brady Campaign. "The Chicago mobsters of the 1930s would be giddy. But the man I worked for, who gave us Sandra Day O'Connor and signed the 1986 machine gun ban, would be shaking his head."

"Judge Alito's ludicrous machine gun decision is bad enough. But it also indicates that a Justice Alito would attempt to prevent Congress from passing other laws to protect Americans from gun violence," said Michael D. Barnes, president of the Brady Campaign. "If Judge Alito had his way, the federal machine gun ban would have been struck down as unconstitutional, and the private possession of these weapons would have become legal."


11 posted on 10/31/2005 8:52:00 AM PST by OXENinFLA
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To: Dan from Michigan

SNIP - ALITO DISSENTING OPINION

Maj. Op. at ----. 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, --- 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. But if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits. Cf. Charles Fried, Foreword: Revolutions?, 109 HARV.L.REV. 13, 36-37 (1995).


12 posted on 10/31/2005 8:52:50 AM PST by antaresequity
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To: Dan from Michigan

"Justice Corrigan agreed that because the defendant had complied with Michigan's laws regarding handgun sales, his actions were not illegal."

Kind of makes you wonder how it got that far in the first place.


13 posted on 10/31/2005 8:55:16 AM PST by Sofa King (A wise man uses compromise as an alternative to defeat. A fool uses it as an alternative to victory.)
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To: OXENinFLA
In 1996, Judge Samuel Alito was the sole judge who dissented ...

I think this was a 2-1 decision. They make it sound as if he were the only one out of 25 or something.

ML/NJ

14 posted on 10/31/2005 8:56:42 AM PST by ml/nj
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To: OXENinFLA
More good news!
15 posted on 10/31/2005 9:07:45 AM PST by Joe Brower (The Constitution defines Conservatism. *NRA*)
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To: coloradan
Alito is a blood traitor. He's an eastern elitist. The USA does not end at the Appalachian mountains. Princeton? Yale?

Post a picture of him under the Gateway Arch in St. Louis. Post a picture of him with the front range of the Rockies in the background. Post a picture of him with the Golden Gate. Post a picture of him in Hawaii or Alaska.

16 posted on 10/31/2005 9:08:09 AM PST by CholeraJoe (Fasten your safety belts and cleanse your bottoms, it's going to be a bumpy ride)
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To: rob777

Roger that ~ I agree with you 100%!


17 posted on 10/31/2005 9:12:38 AM PST by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: Sofa King
Kind of makes you wonder how it got that far in the first place.

Thank the Ku Klux Klan. Literally. Michigan's gun laws were from the 1920's.

18 posted on 10/31/2005 9:17:02 AM PST by Dan from Michigan ("My Gov'nor don't got the answer")
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To: CholeraJoe
He's an eastern elitist.

The guy is from one of the worst smelling parts of the country and acts like anything but an elitist.

Strange thing, he likes to eat at ethnic restaurants.....in Jersey.

eh!!!

19 posted on 10/31/2005 9:19:14 AM PST by Sonny M ("oderint dum metuant")
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To: Sonny M

Out west, there are only 2 types of ethnic restaurants: Mexican and Chinese.

The man's a liberal.


20 posted on 10/31/2005 9:22:49 AM PST by CholeraJoe (Fasten your safety belts and cleanse your bottoms, it's going to be a bumpy ride)
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To: OXENinFLA
"Earth to Sammy -- who needs legal machine guns?" asked Jim Brady, chair of the Brady Campaign.

That's why you're on the margins, and will never be considered for the Supreme Court, Jimmy...my rights aren't dependent upon what you think I NEED.

21 posted on 10/31/2005 9:24:19 AM PST by gogeo (Often wrong but seldom in doubt.)
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To: Joe Brower; TheRobb7
http://releases.usnewswire.com/GetRelease.asp?id=55880
Among Alito's opinions to which MoveOn objects are the following:

-- Against workers' rights under the Family and Medical Leave Act;

-- Against workers rights to oppose employment discrimination;

-- Against the rights of people with disabilities;

-- Against women's rights including reproductive choice;

-- Allows unauthorized, unreasonable and invasive searches.

The two I have bolded are two I find objectionable.

22 posted on 10/31/2005 9:28:05 AM PST by B4Ranch (No expiration date on the oath to protect America from all enemies, foreign and domestic!)
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To: B4Ranch
Naturally, they don't provide references to the decisions so we can decide for ourselves if the one liners given are an accurate representation of his opinions.

One of the really wonderful things about the internet is that it makes it easy for US to look at the primary source material so we can make informed decisions. Naturally, Moveon wouldn't know about that.

23 posted on 10/31/2005 9:35:40 AM PST by zeugma (Warning: Self-referential object does not reference itself.)
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To: zeugma

True


24 posted on 10/31/2005 9:41:51 AM PST by B4Ranch (No expiration date on the oath to protect America from all enemies, foreign and domestic!)
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To: CholeraJoe
Out west, there are only 2 types of ethnic restaurants: Mexican and Chinese.

Hey.

I eat at ethnic restaurants.

and I am no liberal.

You can't seriously tell me they have no italian restaurants out west?

Over where I live I can't go a block without seeing some kind of new ethnic restaurant.

25 posted on 10/31/2005 9:51:58 AM PST by Sonny M ("oderint dum metuant")
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To: coloradan

What was so great about Janice Rogers Brown in comparison with Alito?


26 posted on 10/31/2005 9:54:17 AM PST by Clemenza (In League with the Freemasons, The Bilderbergers, and the Learned Elders of Zion)
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To: Dan from Michigan

Thanks. It looks as if Alito will be the change from a "swing" vote to a solid conservative vote that we have been pushing for many years.


27 posted on 10/31/2005 10:16:10 AM PST by Blood of Tyrants (G-d is not a Republican. But Satan is definitely a Democrat.)
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To: CholeraJoe

A blood traitor? For not going to St. Louis. Guess what, I haven't been there either. I was born and raised in CT but I'm no Eastern elitist.

You need to put down the crack pipe, FRiend.


28 posted on 10/31/2005 11:04:17 AM PST by Romish_Papist (Catapultam habeo. Nisi pecuniam omnem mihi dabis, ad caput tuum saxum immane mittam.)
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To: CholeraJoe

Hmmm..... you make yourself sound like a "western elitist" with that post. And who gives a d*mn what kind of ethnic food they have out west? Who made you sole arbiter of those who are "traitors" and those who are not?

What proof can you offer us that Alito is a liberal? You know, aside from just saying he is.


29 posted on 10/31/2005 11:05:37 AM PST by Romish_Papist (Catapultam habeo. Nisi pecuniam omnem mihi dabis, ad caput tuum saxum immane mittam.)
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To: Clemenza

JRB apparently believes the constitutional right of property - means zoning laws are illegal. so my neighbor is free to build a skyscraper next to my house? A toxic waste dump? open an porn shop? Just because they own the property? I don't think so.


30 posted on 10/31/2005 11:09:28 AM PST by oceanview
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To: Clemenza

Brown is definitely pro-Second Amendment. The strongest case I have seen for Alito, regarding a machine gun possession case, was that he is anti-Commerce clause (certainly, a good thing) but not pro-Second Amendment. My acid test is Second Amendment - if anyone thinks anyone peaceable should be disarmed, I simply have to assume they intend harm.


31 posted on 10/31/2005 11:17:57 AM PST by coloradan (Hence, etc.)
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To: Dan from Michigan

Rybar is a commerce clause thing and Alito is definitely on the right side of that argument. I haven't been able to find anything on Alito vis a vis an RTKABA being an indivdual right but all indications are that the guy reads the text for what it is and then moves on to original intent if the text is nuanced.


32 posted on 10/31/2005 11:20:36 AM PST by jwalsh07
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To: OXENinFLA

If the Brady group doesn't like Alito, then I like him.


33 posted on 10/31/2005 12:36:44 PM PST by cruiserman
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To: Dan from Michigan

" Thank the Ku Klux Klan. Literally"

I thought it was a reaction to the gangland wars.


34 posted on 10/31/2005 1:31:05 PM PST by dljordan
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To: Romish_Papist; xsmommy; secret garden; Alas Babylon!; Neil E. Wright
You need to put down the crack pipe, FRiend.

I don't do dope and I don't chew rope. My sniffer dog was finding dead bodies before you joined FR, newbie. He found his first when he was 4 months old in September of 2003.

We're currently in Nicaragua looking for bodies or survivors. Can you match that?

My point, and I do have one, was that there are excellent law schools outside of New England. For example: Stanford, Northwestern, George Washington, Brigham Young, Pepperdine, Tulane, and Gonzaga.

An Auburn graduate (let's just say it's me) gets accepted into the Harvard Law School and on the first day of class shows up on campus.

He walks up to the tweed-coated second-year law student in his bib overalls and drawls. "Hey, y'all. Where's the bookstore at?"

The Harvard man is horrified and straightens his club tie and replies, "My good man, this is Haavad. We do not end our sentences with a preposition."

The Auburn graduate replies, "Oh, I apologize. Where's the bookstore at, A$$hole?"

35 posted on 10/31/2005 5:20:42 PM PST by CholeraJoe (Fasten your safety belts and cleanse your bottoms, it's going to be a bumpy ride)
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To: CholeraJoe

Was he wearing his Sunday-go-to-meeting overalls? ;) And do they have Arby's in Nicaragua?


36 posted on 10/31/2005 7:41:37 PM PST by secret garden (<= easily amused)
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To: Joe Brower
Yo Joe,

Thanks for the pings today. The country and the Bill of Rights are infinitely more protected today than they were last week. The freedom hating dems were denouncing Sammy before W was done introducing him. That can only be a good thing. It's a timely thing, too, since the Protection of Lawful Commerce in Arms act will be appearing in a court really soon. And don't forget Rebecca Peters and their nonesense at the UN. We need the Supreme court straightened out badly since they started citing international law.

37 posted on 10/31/2005 8:25:20 PM PST by kerryusama04 (The UN wants our guns so they can rape our children and steal our money)
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To: Dan from Michigan

It is a good sign.


38 posted on 10/31/2005 8:29:05 PM PST by Tench_Coxe
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To: CholeraJoe

Newbie? Ha! That the best you can do?

Can I match Nicaragua? Nah, though I've done my stint in the military, thanks very much.

Get over yourself.


39 posted on 11/01/2005 5:33:42 AM PST by Romish_Papist (Catapultam habeo. Nisi pecuniam omnem mihi dabis, ad caput tuum saxum immane mittam.)
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To: rob777
Alito is no Janice Rogers Brown, but then again he's no Alberto Gonzales, either.

Justice Brown towers above just about any potential nominee and was my sole preference for the vacancy. That being said, I am enthusiastically behind this choice.

JRB accordingly makes a swell *nuclear option* alternative for those might insist upon a female replacement for Sandra Day O'Connor...who, of course, herself replaced a male SC justice.

40 posted on 11/01/2005 12:07:57 PM PST by archy (The darkness will come. It will find you,and it will scare you like you've never been scared before.)
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To: secret garden; xsmommy
No Arby's, just MRE's. We're back. No injuries. Six barks, massive carnage. Hate 3rd world countries like Nicarauga and Louisiana.

And FEMA hasn't coughed up a cent, yet.

41 posted on 11/07/2005 1:22:23 PM PST by CholeraJoe (Fasten your safety belts and cleanse your bottoms, it's going to be a bumpy ride)
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To: CholeraJoe

glad you're back safely. btw, alito is a good guy.


42 posted on 11/07/2005 1:32:48 PM PST by xsmommy
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