ALITO UNBOUND:

Alito Opinion in 1996 Gun Case Hints at Views on Federalism (JESS BRAVIN, November 4, 2005, THE WALL STREET JOURNAL)

In April 1995...for the first time in six decades, the High Court struck down a federal law for exceeding the commerce power. In the 5-4 decision invalidating the Gun-Free School Zones Act, Chief Justice William Rehnquist found that the law, imposing criminal penalties for bringing guns near schools, had "nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms," and therefore was unconstitutional. [..]

Nobody was happier with the Lopez ruling than James H. Jeffries III, the Greensboro, N.C., lawyer representing Mr. Rybar who had appellate briefs due within days. "I said, 'Eureka! Chief Justice Rehnquist has written my brief,' " Mr. Jeffries says. "This gun was made in Pennsylvania by a Pennsylvanian and sold to a Pennsylvanian; it was probably even made out of Bethlehem steel." Mr. Rybar didn't return phone calls this week seeking comment.

The two-judge majority quickly dismissed Mr. Jeffries's effort to link the Rybar case to the Lopez precedent. It found the machine-gun law a constitutional elaboration of long-standing federal efforts to regulate interstate commerce in firearms, observing that Congress had previously found that "the flow of firearms across state lines and their consequential indiscriminate availability with the resulting violent criminal acts ... are beyond the control of the states."

Judge Alito saw it differently. The states were perfectly capable of deciding on their own whether machine guns needed regulation, he wrote, and all four jurisdictions in the Third Circuit -- Delaware, New Jersey, Pennsylvania and the Virgin Islands -- had enacted their own machine-gun laws.

At a briefing yesterday, Justice Department officials said that the Rybar dissent shouldn't be seen as a wholesale assault on the commerce power, and that there were other instances where Judge Alito rejected claims by criminal defendants seeking to invalidate federal statutes under similar theories.

But Dawn Johnsen, an Indiana University law professor and former Clinton Justice Department official, said the Rybar dissent was of a piece with other Alito opinions on the frontlines of doctrinal battles.

"Where the Rehnquist Court began moving in a more conservative direction and created an opening, he took that to an extreme," she says. Specifically, she points to Judge Alito's 2000 majority opinion barring a state government employee from obtaining sick leave under the federal Family and Medical Leave Act, and his 1991 dissent seeking to uphold a state law requiring women in Pennsylvania to notify their husbands before obtaining an abortion.

In both instances, she says, Judge Alito seized on Rehnquist Court precedents to argue for a more right-leaning position than the court itself would embrace. The court later rejected a claim that the Constitution exempted states from a provision of the Family and Medical Leave Act, as well as Judge Alito's argument on the spousal-notification provision.

"When he is no longer bound by Supreme Court precedent, these cases are a great indication of where he'll want to take doctrine," Ms. Johnsen says.

Or so we all hope...

Posted by Orrin Judd at November 4, 2005 1:22 PM