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Alito tea leaves: machine guns and the Commerce Clause

Per David Kopel:

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.

This does not mean, Kopel notes, that Judge Alito necessarily favors an individual-rights view of the Second Amendment, but it does suggest, he thinks, that the judge is,

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.

On the other hand, Jeff Rosen has blasted Alito's opinion in the case as embodying "the logic of the Constitution in Exile", no doubt suggesting one likely line of attack by Senate liberals in the weeks ahead.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.