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Alito: U.S. v. Rybar dissent

Norm Ornstein in Roll Call and Robert Gordon in Slate attack Alito over his dissent in U.S. v. Rybar, a federal statute barring what Congress defined as "machine guns." But Ornstein (and Gordon, to a lesser extent) misrepresent Alito's decision. Alito simply applied the Supreme Court precedent in Lopez—a decision striking down a subsection of the same statute.

The statutory provision challenged in this case, the portion of 18 U.S.C. � 922(o) that generally prohibits the purely intrastate possession of a machine gun, is the closest extant relative of the statute struck down in Lopez, 18 U.S.C. � 922(q)(1)(A), which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce. Compare, e.g., 18 U.S.C. � 922(d). And in passing both statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce. ...

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. [...] Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element--a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. � 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. ...

Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? Is the possession of a firearm within a school zone somehow less "economic" and "commercial" than possession elsewhere--say, on one's own property? [Footnotes and cites omitted.]

Gordon complains that the statute was aimed at "trafficking," and was thus permissible, but ignores Alito's reasoning that the statute went beyond mere trafficking to include a purely private and intrastrate conversion of a "legal" weapon into an "illegal" weapon. Reasonable minds can differ on the correct answer to this question; at the time of Alito's dissent, Supreme Court jurisprudence on the scope of the Commerce Clause was considerably confused, and there were certainly pre-Lopez precedents that supported the constitutionality of � 922(o). But Alito's opinion in Rybar shows no indication that he would strip Congress of the ability to enact New Deal-style legislation.

Dave Kopel has more.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.