Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

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
Navigation: use the links below to view more comments.
first 1-2021-4041-42 next last
U.S. v. Rybar

It's a good start.

1 posted on 10/31/2005 8:22:54 AM PST by Dan from Michigan
[ Post Reply | Private Reply | View Replies]

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*)
[ Post Reply | Private Reply | To 1 | View Replies]

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.)
[ Post Reply | Private Reply | To 1 | View Replies]

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)
[ Post Reply | Private Reply | To 1 | View Replies]

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
[ Post Reply | Private Reply | To 3 | View Replies]

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.)
[ Post Reply | Private Reply | To 1 | View Replies]

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)
[ Post Reply | Private Reply | To 1 | View Replies]

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
[ Post Reply | Private Reply | To 1 | View Replies]

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)
[ Post Reply | Private Reply | To 1 | View Replies]

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
[ Post Reply | Private Reply | To 2 | View Replies]

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
[ Post Reply | Private Reply | To 1 | View Replies]

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.)
[ Post Reply | Private Reply | To 1 | View Replies]

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
[ Post Reply | Private Reply | To 11 | View Replies]

To: OXENinFLA
More good news!
15 posted on 10/31/2005 9:07:45 AM PST by Joe Brower (The Constitution defines Conservatism. *NRA*)
[ Post Reply | Private Reply | To 11 | View Replies]

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)
[ Post Reply | Private Reply | To 3 | View Replies]

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!)
[ Post Reply | Private Reply | To 5 | View Replies]

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")
[ Post Reply | Private Reply | To 13 | View Replies]

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")
[ Post Reply | Private Reply | To 16 | View Replies]

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)
[ Post Reply | Private Reply | To 19 | View Replies]


Navigation: use the links below to view more comments.
first 1-2021-4041-42 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson