Looks like Brady hates Alito


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Rem700SD
January 11, 2006, 03:12 AM
Have we found a nominee we can like?

http://releases.usnewswire.com/GetRelease.asp?id=59107

Alito Misleads Committee on U.S. Gun Laws, Says Brady Center

1/10/2006 4:49:00 PM


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To: National Desk, Legal Reporter

Contact: Peter Hamm of the Brady Center to Prevent Gun Violence, 202-289-5792

WASHINGTON, Jan. 10 /U.S. Newswire/ -- In an exchange with Sen. Jon Kyl (R-Ariz.), Judge Samuel Alito, in defending his dissent in U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), mislead the Senate Judiciary Committee about the content and history of federal gun laws, according to Brady Center to Prevent Gun Violence. In his Rybar opinion, Judge Alito wrote that the federal machine gun ban amounted to an unconstitutional exercise of Congressional power under the Commerce Clause.

-- Judge Alito wrongly suggested to the Committee that the machine gun ban is indistinguishable from the statute struck down in U.S. v. Lopez, 514 U.S. 549 (1995). The Gun-Free School Zones Act at issue in Lopez banned possession of guns in a particular place; i.e. at or near a school. The machine gun ban, by contrast, prohibits possession of fully automatic weapons in any location.

o Moreover, Judge Alito went far beyond the limited holding in Lopez, and indeed his view in Rybar has been repudiated by the Supreme Court. In June 2005, the Supreme Court issued its latest ruling on Congressional power under the Commerce Clause in Gonzales v. Raich, 125 S.Ct. 2195 (2005), 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 case of U.S. v. Stewart, 348 F.3d 1132 (9th Cir. 2003), that had declared the machine gun ban to be unconstitutional. In his exchange with Judge Alito, Senator Kyl cited the Stewart decision, without noting that it had been vacated by the Supreme Court. Judge Alito's conclusion that the machine gun ban violates the Commerce Clause has now been rejected by every circuit to consider the issue: the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits.

-- Judge Alito also falsely suggested that the federal machine gun ban and Gun-Free School Zones Act were unique among federal firearms laws because they lack a "jurisdictional element," requiring that prosecutors show that a machine gun had traveled in interstate commerce.

o Other federal firearms laws critical to public safety also lack a jurisdictional element. These include 18 U.S.C. Section 922(p), which prohibits possession of undetectable firearms manufactured after the date of enactment in 1988, and 18 U.S.C. Section 922(x), which generally prohibits possession of handguns by juveniles. Judge Alito's comments suggest that he would also strike down federal laws prohibiting undetectable firearms and possession of handguns by juveniles.

o Contrary to Judge Alito's suggestion, the courts have never required that Congress include a jurisdictional element in federal firearm laws. As the majority in Rybar noted, "We have rejected the argument that Lopez requires federal criminal statutes to contain a jurisdictional element." Rybar at 284, quoting U.S. v. Kenney, 91 F.3d 884, 887 (7th Cir. 1996).

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K-Romulus
January 11, 2006, 10:30 AM
Contrary to Judge Alito's suggestion, the courts have never required that Congress include a jurisdictional element in federal firearm laws. As the majority in Rybar noted, "We have rejected the argument that Lopez requires federal criminal statutes to contain a jurisdictional element." Rybar at 284, quoting U.S. v. Kenney, 91 F.3d 884, 887 (7th Cir. 1996).

There definitely needs to be a jurisdictional hook. Maybe they should re-read Lopez again. . . .

The exercise of federal power is limited by the Constitution to matters regarding interstate commerce (and other specifically listed subjects like international treaties, etc.). Even the "intrastate" cases acknowledge this jurisdictional hook (no matter how weakly). . . .:rolleyes:

I like how the Brady crowd cites the majority opinion from which Alito dissented, rather than an actual, real-live USSC opinion on the issue. Surprise, surprise, surprise?:rolleyes:

rabidgoldfish
January 11, 2006, 07:08 PM
It's sad really, their website calls him the "MACHINE GUN JUDGE:eek:", Alito bad news for brady good news for us.

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