Case Studied for Clues on Alito's Views of Federalism

Supreme Court nominee Samuel Alito has been a federal appeals court judge for 15 years, and the opinions he wrote during those years are being examined for clues to how he might vote as a justice. One ruling in particular — Alito's dissenting opinion in a machine gun possession case — is being studied for indications of his views on the role of the federal government's power over individual states.

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Shortly after Samuel Alito was nominated to the Supreme Court, his supporters had to beat back the nickname "Scalito." Well, now they face a new moniker, "Machine Gun Sammy." That's what gun control groups are calling Alito because of his ruling a decade ago that federal regulations on machine guns are unconstitutional. Alito's detractors say that decision shows that the nominee wold drastically limit the power of the federal government. But as NPR's Larry Abramson reports, Alito's supporters say the ruling just shows how faithfully he follows Supreme Court precedent.

LARRY ABRAMSON reporting:

In 1995, Raymond Rybar Jr. of Pennsylvania asked the 3rd Circuit Court of Appeals to overturn his conviction for violating a federal law that limits the ownership and transfer of machine guns. His argument? Congress has no authority to limit ownership of a weapon within a state.

David Kopel is a gun law expert with the think tank the Independence Institute. He says the challenge used the same logic that others have used when seeking to overturn a 1986 law that bans the sale or ownership of unregistered machine guns.

Mr. DAVID KOPEL (Independence Institute): When Congress passes a criminal law going down to the mere possession of an object entirely intrastate, that Congress has to give some kind of indication of how that has a relation to interstate commerce, which is what Congress has the authority to regulate.

ABRAMSON: Like those other challenges, Rybar's failed, and his conviction was upheld. But one of the three judges, Samuel Alito, wrote a lengthy dissent adapting many of Rybar's objections to the federal ban. Alito did not have to reach far to find Supreme Court backing for his position. The same year as Rybar's appeal in US v. Lopez, the high court threw out a federal ban against gun possession in a school zone. David Kopel says that case outlines the limits to congressional power under the commerce clause.

Mr. KOPEL: Once you have that as your guidepost, then it's fairly easy to say that a complete ban on the mere possession of a machine gun likewise doesn't have anything to do with interstate commerce.

ABRAMSON: Alito argued that Congress had failed to hold hearings or make any kind of showing that intrastate machine gun possession had an impact on interstate commerce. But the majority on the court said, in fact, Congress has been regulating firearms ownership since the 1930s. Kristen Rand, with the Violence Policy Center, says Congress held hearing back then and there was strong support for those first laws which imposed heavy taxes and registration requirements on machine gun owners.

Ms. KRISTEN RAND (Violence Policy Center): And basically, the attorney general at the time, Homer Cummings, was adamant that we had to stop the flow of machine guns into the hands of criminals like John Dillinger who were you know, using these to commit, for example, the St. Valentine's Day massacre.

ABRAMSON: The Violence Policy Center and other groups say Alito's dissent in this case is extraordinary because it questions the constitutionality of a ban that has survived no fewer than 11 court challenges. Kristen Rand is worried about how Alito might rule, for example, on a law passed in 2002 which restricts the intrastate transfer of explosives.

Ms. RAND: If you look at Judge Alito's dissent and you just plug in the word `explosive' where he uses the word `machine gun,' then that law falls as well.

ABRAMSON: And those concerns reach well beyond regulation of firearms and explosives. Erwin Chemerinsky of Duke Law School says Alito's conservative views on the limits of federal power would threaten some basic rights protected by Congress.

Mr. ERWIN CHEMERINSKY (Duke Law School): For example, Judge Alito wrote an opinion saying that state governments could not be sued for violating the Family and Medical Leave Act. The Supreme Court, when it considered the identical issue, 6-to-3 came to the opposite conclusion and allowed suits against state governments.

ABRAMSON: Chemerinsky says many Supreme Court decisions on federalism were quite narrow. Alito's vote, he says, could tip the balance. But many conservative commentators say this is mostly liberal claptrap that tries to paint Alito as an activist. In fact, they say Alito's rulings on the limits of federal power show how restrained he is. Eugene Volokh of UCLA Law School says Alito questioned the machine gun ban basically because the Supreme Court told him to when it struck down the school's own law.

Mr. EUGENE VOLOKH (UCLA Law School): There was good reason for judges to believe that private possession of products--not commerce in products, but private possession of products--was left solely to the states to regulate and that Congress did not have the power to regulate such private possession.

ABRAMSON: Today, Volokh argues, Alito might well rule differently. Earlier this year, the Supreme Court extended the reach of the federal government when it decided that federal laws against marijuana possession supercede state laws permitting use by patients. David Kopel of the Independence Institute says the machine gun ruling only says one thing.

Mr. KOPEL: I think it says that he is a guy who's really conscientious about trying to follow precedent.

ABRAMSON: None of that can predict just how Judge Alito will rule when he is one of those setting Supreme Court precedent. Larry Abramson, NPR News, Washington.

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