JUDGE ALITO REFUSES TO BACK DOWN FROM HIS VIEW THAT FEDERAL MACHINE GUN BAN IS UNCONSTITUTIONAL
For Immediate Release:
01-12-2006 Contact Communications:
(202) 898-0792
Washington, D.C. – Under questioning by the Senate Judiciary Committee, Supreme Court nominee Judge Alito today refused to back down from his dangerous dissent in U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), cert. denied, 522 U.S. 807 (1997), in which he found that the federal machine gun ban is unconstitutional.  

In an exchange with Senator Schumer (D-NY) today, Judge Alito refused to change his view despite being confronted with a June 2005 Supreme Court ruling where six Justices, including Justice Scalia, repudiated Judge Alito’s view, leading the High Court to later vacate the only court ruling that had struck down the machine gun ban.

In his testimony, Judge Alito defended his activist Rybar dissent by stating that, in his view, it would be “easy” for Congress to fix the law to comport with the Constitution.  He suggested that Congress could re-enact the ban and limit federal prosecutions only to criminals who possess machine guns that have crossed state lines.  

Limiting Congressional power to prohibit machine guns only if they have crossed state lines has no basis in the law.  Further, it would tie the hands of prosecutors who protect the public by cracking down on criminals who convert semiautomatic firearms to fully automatic machine guns without the machine guns crossing state lines.  

In a troubling revelation that his decision was based on his personal views, Judge Alito admitted in response to questions by Senator Kyl (R-AZ), that his view was based on his personal experience as a prosecutor.  Alito stated:

[A]ll that’s necessary is that is to show that the firearm at some point in its history passed in interstate or foreign commerce….  From my experience, this was never a practical problem and this was how all the federal firearms statutes had been framed.

Dennis Henigan, Director of the Legal Action Project of the Brady Center to Prevent Gun Violence, stated, “It is not up to unelected federal judges to second-guess the wisdom of Congress based on their personal experience, particularly on issues of public safety.  Judge Alito’s refusal to back down from his judicial activism in declaring the federal machine gun ban unconstitutional places law enforcement and the public in great jeopardy.  Judge Alito’s views are extreme and dangerous.”

Moreover, Judge Alito’s personal experience is severely flawed.  Contrary to his assertion, prosecutors frequently prosecute criminals who possess illegal fully automatic machine guns that have not crossed state lines.  Moreover, Judge Alito’s claim that “all the federal firearms statutes” require proof of interstate commerce is incorrect.  Several federal laws protect the public without requiring illegal guns to cross state lines, including laws barring firearms not detectable by metal detectors and handgun possession by juveniles.  See 18 U.S.C. Section 922(p) (prohibiting possession of undetectable firearms manufactured after the date of enactment in 1988); 18 U.S.C. Section 922(x) (generally prohibiting possession of handguns by juveniles).  These laws would be placed in jeopardy if Judge Alito’s views were to be adopted by the Supreme Court.

If Alito’s view that Congress cannot prohibit machine gun possession if machine guns do not travel in interstate or foreign commerce had been enforced against Congress, the following criminal prosecutions for violation of the machine gun ban may have been prohibited:

Criminal Prosecutions Involving Machine Guns Converted By Criminals

The following cases involve criminal prosecutions for unlawful possession of a machine gun, where criminals converted guns from semiautomatic to fully automatic machine guns, and there is no evidence that any of the machine guns crossed state lines:

Southern Illinois — White Supremacists Intending to Rob Banks and Armored Cars and Carry Out Assassinations Convicted of Machine Gun Possession

Defendants were founding members of the “New Order,” a white supremacist group that sought to “unit[e] white supremacist groups in a violent struggle against those would resist the creation of a ‘pure white Christian country.’” Dennis McGiffen, the lead coordinator who was also a Grand Dragon in the Illinois Ku Klux Clan “regularly used...force to maintain members' allegiance.” McGiffen threatened to kill one member if he ever talked to anyone about their group again after the member told his mother about their plans. The group decided to carry out a string of robberies of banks and armored cars to finance their scheme. The group stockpiled weapons and was particularly fond of automatic weapons “for their destructive capability.”  The group accumulated a significant stockpile of weapons — including several automatic weapons converted from semiautomatic firearms, a rocket, dynamite and homemade hand grenades to carry out the assassination of Morris Dees and the destruction of the Southern Poverty Law Center and other crimes. Federal authorities arrested the defendants before they could carry out their plans.

Indiana — Bank Robbers Used Machine Guns

Criss Duncan and Ralph Berkey robbed the National City Bank in Leesburg, Indiana in 2003. Each was armed with assault rifles modified to be fully automatic.

Texas — Cocaine Traffickers Pulled Machine Gun on Federal Officers

Enrique Gonzales Jr. and his co-defendants were engaged in a cocaine trafficking ring in Houston, Texas. When federal agents initiated an undercover drug buy to arrest them, one of the co-defendants pulled a machine gun and threatened to fire, but was persuaded to put the gun down by an officer who had his police pistol trained directly on him.  An ATF expert testified that the machine gun had been modified to perform as a machine gun.

Background on Machine Guns and Machine Gun Ban

Machine guns are fully automatic weapons that have been heavily regulated by Congress since 1934.  They fire continuously with one pull of the trigger and can discharge hundreds of rounds in seconds.  In 1986, President Reagan signed a federal law banning the manufacture of machine guns for the civilian market and banning the transfer and possession of machine guns not lawfully possessed before May 19, 1986.  These “grandfathered” machine guns remain subject to strict registration, possession, transfer, and taxation requirements.  

Judge Alito’s conclusion that the machine gun ban violates the Commerce Clause is so far out of the mainstream of Constitutional jurisprudence that it has been rejected by every other federal appellate court that has considered the issue, including the Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits.  Moreover, in June 2005, the Supreme Court issued its latest ruling on Congressional power under the Commerce Clause in Gonzales v. Raich, rejecting the theory advanced in Judge Alito’s Rybar dissent.  Six Justices, including Justice Scalia, sustained the application of federal drug laws to intrastate medical marijuana use.  Based on this ruling, the Supreme Court vacated a 2-1 ruling in the Ninth Circuit that had declared the machine gun ban to be unconstitutional.

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As the nation's largest national, non-partisan, grassroots organizations leading the fight to prevent gun violence, the Brady Campaign to Prevent Gun Violence and the Brady Center to Prevent Gun Violence are dedicated to creating an America free from gun violence, where all Americans are safe at home, at school, at work, and in their communities.

Damn, sucks to be on the losing team doesn't it Sarah? Here's another pack of unfiltered Camels for you.

Don't get too happy.  Alito basically said "if you want to regulate machine guns, there are lots of ways to do it consitutionally, but you can't do it as part of interstate commerce".

In his testimony, Judge Alito defended his activist Rybar dissent by stating that, in his view, it would be “easy” for Congress to fix the law to comport with the Constitution.

Alito is not necessarily anti-gun, but he hasn't made any rulings that I would consider pro 2nd amendment.

any chance of changing the title to something like "brady campaign shitting pants and spewing more lies"?

And Alito said that WOULD NOT include any machineguns that DO NOT travel interstate.

So Alito gets on the court. They throw the machine gun ban out. The Republican congress can not get enough votes to repass the law for a few years. BANG! Cheap Machine Guns! When they repass the law, we all get to register our new machine guns!

FORM 4 here we come!

Both of my senators are voting for Judge Alito's confirmation.