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NPR on Alito and Machine Guns:

The November 11 edition of NPR's "All Things Considered" features a segment on Judge Alito's decision in Rybar, in which Alito followed the Supreme Court's Lopez precedent to write that a federal ban on machine gun possession was not a valid exercise of the federal power to regulate interstate commerce. Guests on the program were Eugene Volokh, Kristin Rand of the Violence Policy Center, Erwin Chemerinsky of Duke Law School, and me.

Anderson (mail) (www):
Off Topic: Since the VC was jubilant over Alito's nomination, I wonder when we'll see a post defending his Concerned Alumni of Princeton membership?

I would strongly suggest that such a defense would need to take the "he didn't really know what he belonged to" tack, for reasons outlined by Princeton grad Hilzoy over at Obsidian Wings.
11.27.2005 5:04pm
magoo (mail):
Anderson -- There's a disconnect here. Obsidian suggests CAP was Birch-like. But I seem to recall reading that it was headed by William Rusher, publisher of National Review, which was decidedly anti-Birch, and never missed an opportunity to ridicule Birch's conspiracy theories. Nor was Rusher racist, though like most conservatives and most Americans, he opposed quotas. I'm not disputing that certain members of CAP might have been extreme, but that doesn't make CAP or Rusher or Alito extreme. Much of what Obsidian ridicules about CAP sounds vaguely like Buckley's critique of of his alma mater, God and Man at Yale.
11.27.2005 6:41pm
Anon1ms (mail):
". . . certain members of CAP might have been extreme, but that doesn't make CAP or Rusher or Alito extreme."

No, I guess it just makes them very tolerant to the extremism of their brethren.
11.27.2005 6:50pm
Anderson (mail) (www):
Obsidian suggests CAP was Birch-like.

Not really, Hilzoy just suggests that CAP was, like Birch, too extreme to be merely labeled a "conservative" organization. By analogy, one couldn't call the Communist Party USA a "liberal" outfit--though of course, many are happy to say that liberals are Commies, or that all conservatives are Birchers at heart.

As for whether CAP was indeed "extreme," her quotes from CAP's own publication make that rather difficult to doubt. It would not be terribly persuasive to argue that, despite its offensive accidents, the substance of CAP remained pure &unsullied. As Hilzoy sums up, "CAP was about opposing the presence of women and minorities at Princeton. Period."
11.27.2005 7:21pm
byomtov (mail):
I don't know about Rusher, but Buckley's well-publicized and obnoxious opinions about Yale seem to match CAP's ideas about Princeton fairly well.

CAP may not have been Birchist, but they were clearly pretty extreme in their ideas about who ought to go to Princeton.
11.27.2005 7:32pm
Brooks Lyman (mail):
I don't know what the preceding comments have to do with Alito's decision in Rybar, but since the link doesn't lead to anything substantive from or about Alito on Rybar (and machine guns and the commerce clause), I'd ask David Kopel to elucidate for those of us who are not familiar with the case and don't particularly want to track it down. Thanks.

Brooks Lyman
11.27.2005 9:07pm
Anderson (mail) (www):
I don't know what the preceding comments have to do with Alito's decision in Rybar

Nothing, hence "off topic." But in apology for thread-jacking, here's a link to Wiki on the subject, which includes a link to the op.

Authoring a notable dissenting opinion was Justice Samuel Alito who was nominated Monday, Oct. 31 2005 to the US Supreme Court by President George W. Bush. In it, he argues that the commerce clause cannot affect purely intrastate possession of any firearm since the defendant built the gun himself and the Government made no effort to show any link to Interstate Commerce.
11.27.2005 9:12pm
Anderson (mail) (www):
Back to "was CAP extreme?" (an interesting codeword) ...
By 1985 Concerned Alumni had become well known in conservative circles. Financed in part by Shelby Cullom Davis, a member of the 1930 class and the ambassador to Switzerland in the Nixon administration, the group announced in an early fund-raising pamphlet that its goals included a less-liberal faculty and "a more traditional undergraduate population."

A pamphlet for parents suggested that "racial tensions" and loose oversight of campus social life were contributing to a spike in campus crime. A brochure for Princeton alumni warned, "The unannounced goal of the administration, now achieved, of a student population of approximately 40 percent women and minorities will largely vitiate the alumni body of the future."

In 1975, an alumni panel that included Senator Bill Frist of Tennessee, the current Republican leader and a 1974 Princeton graduate, concluded that Concerned Alumni had "presented a distorted, narrow and hostile view of the university that cannot help but have misinformed and even alarmed many alumni" and "undoubtedly generated adverse national publicity." (Mr. Frist could not be reached for comment.)
N.b. that Alito listed his CAP membership as evidence that his "philosophical commitments" were in line with the Reagan administration's. So regardless of his participation in CAP (minimal it seems), their beliefs were the kind he wanted to identify with.
11.27.2005 9:31pm
hilzoy (mail) (www):
"Obsidian suggests CAP was Birch-like.

Not really, Hilzoy just suggests that CAP was, like Birch, too extreme to be merely labeled a "conservative" organization."

-- Anderson is right: I just meant that calling it 'conservative' made it sound a lot more normal than it actually was. Having read the comments, I'm glad I didn't go with my first thought, which was to say 'only slightly less wrong-headed than calling the Montana Militia a 'conservative' group.'

Did Buckley run a campaign of harassment designed to get the alumni of Yale to back off admitting women and minorities?
11.27.2005 9:38pm
byomtov (mail):
Did Buckley run a campaign of harassment designed to get the alumni of Yale to back off admitting women and minorities?

I don't know all the details of Buckley's campaign. He clearly opposed merit-based admissions, and ran for the Yale board on a platform that sought to return Yale to an era when it was a club for the children of alumni and their social peers. Whether or not the policies he advocated were as noxious on their face as those promoted by CAP, the results would have been quite similar.
11.27.2005 10:02pm
Beerslurpy (mail) (www):
Am I stupid? I dont understand what any of this has to do with Rybar.
11.27.2005 10:32pm
A. Zarkov (mail):
I suspect CAP was not as extreme as the current administration of Princeton. Did they advocate speech codes? FIRE classifies Princeton as a "red light university," meaning they have at least one policy that both clearly and substantially restricts freedom of speech.
11.28.2005 12:56am
Roger Schlafly (www):
CAP published some opinions that were annoying to the Princeton administration in the 1970s, but they were not very interesting to anyone outside Princeton. It will be ridiculous if the committee asks Alito about the rate at which Princeton went co-ed, or any similar issue.
11.28.2005 1:17am
Perseus:
Many colleges in that era faced the choice of whether to go co-ed. My alma mater went co-ed, but our neighboring "sister" school remains all female. Is it "extreme" not to want one's alma mater to go co-ed? Or is it only "extreme" to advocate all-male colleges?

Similarly, why is it "extreme" to support quotas to limit the number of women and minorities admitted to a private university, but not extreme to support affirmative action quotas ("critical mass") to increase the number of women and minorities?
11.28.2005 2:05am
Anderson (mail) (www):
Perseus, if the Tutsi are running the country and there are all-Tutsi and all-Hutu colleges, the issue of whether to admit Hutu into the Tutsi colleges is not the same ball of wax as the issue of whether to admit Tutsi into the Hutu colleges.

I mean, come on. Don't you think it looks disingenuous to say you don't see a relevant difference there?
11.28.2005 9:17am
corngrower:
Did I miss the Alito discussion?
11.28.2005 9:59am
magoo (mail):
"No, I guess it just makes them very tolerant to the extremism of their brethren."

I think this is what people have in mind when they refer to "McCartyism of the Left," i.e. Alito must be bad because he belonged to a group that included bad people. Compare "Goodnight, and Good Luck."
11.28.2005 10:25am
Anderson (mail) (www):
Magoo, it's not "belonging to a group that includes bad people."

CAP was, I submit, a group dedicated to bad things. Or at the very least, a group that did a lot of bad things in pursuit of its goals.

And Alito didn't just belong to it---he expressly cited it as an example of his "philosophical commitments."

If he'd cited, oh, the ACLU as such an example, would it really be irrelevant?
11.28.2005 10:41am
keypusher (mail):
Those of us who didn't go to Princeton don't much care about CAP, and we are not inclined to take characterizations of it by its enemies/targets (like Hilzoy) at face value. Next topic?
11.28.2005 11:08am
keypusher (mail):
Those of us who didn't go to Princeton don't much care about CAP, and we are not inclined to take characterizations of it by its enemies/targets (like Hilzoy) at face value. Next topic?
11.28.2005 11:08am
Anderson (mail) (www):
we are not inclined to take characterizations of it by its enemies/targets (like Hilzoy) at face value
Right, and you can't listen to those wacky Jews about how bad the Nazis supposedly were?

Hilzoy quotes from CAP's own publications and members.

As for not caring much about CAP, that's an entirely reasonable response ... except that it wasn't Alito's response. He was proud of his membership &cited it as an example of his beliefs.
11.28.2005 11:48am
Andy Freeman (mail):
Did Churchill really say that a fanatic is someone who can't change his mind and won't change the subject.
11.28.2005 12:49pm
Perseus:
I'm not being the least bit disingenuous. On the contrary, I consider disingenuous those people, particularly my colleagues in the academy, who make that type of argument to justify what (despite their best efforts to obfuscate) are in fact quotas for the groups they happen to prefer.
11.28.2005 12:58pm
Anderson (mail) (www):
Did Churchill really say that a fanatic is someone who can't change his mind and won't change the subject.

I resemble that remark! Though I must note that I started off changing the subject ....

Back to topic, maybe Alito should bring a machine gun to the hearings, as a visual prop for any Second Amendment discussion?
11.28.2005 1:17pm
JosephSlater (mail):
This discussion has obviously not been much about Rybar (although in fairness to other commenters, if you didn't hear the NPR piece, which I didn't, it would be hard to comment on a notice announcing the NPR piece).

So, Conspirators, does Alito's proud citing of his membership a group dedicated to reducing the number of not just women but also minorities in Princeton admissions deserve it's own thread?
11.28.2005 3:48pm
corngrower:
This thread should be saved aa an example of lawyers in a masturbatory delight. The only ones getting happy are themselves
11.28.2005 3:51pm
Anderson (mail) (www):
This thread should be saved aa an example of lawyers in a masturbatory delight. The only ones getting happy are themselves

Not that there's anything wrong with that, right?
11.28.2005 4:17pm
Thorley Winston (mail) (www):
Here's a brief synopsis of the points made by the guests during the five minute broadcast:


David Kopel: Alito followed precedent from a previous case regarding machine guns because Congress didn't hold hearings or make a showing how the mere intrastate possession of the object in question affected interstate commerce. The Lopez decision was consistent with Alito's dissent. The lesson from Alito's ruling is that he's a judge who follows precedent.

Kristin Rand: Congress has long exercised the power to regulate machine guns and held hearings at one point (didn't say if the hearings were regarding interstate commerce. Alito's dissent is extraordinary because the ban has survived eleven previous court challenges. She suggested that Alito's dissent indicates that he might use the same logic to strike down a 2002 laws prohibiting the intrastate transport of explosives is simply substitute the word "explosive" for "machine gun."*

Erwin Chemerinsky: Alito might further restrict the power of the federal government as evidenced by his ruling that State governments cannot be sued for violating the FMLA (overruled by SCOTUS 6-3).

Eugene Volokh: Alito followed Lopez and was correct in doing so because if possessing a firearm within a certain distance of a school is beyond the federal government's commerce power, so would merely possessing the firearm. However we have no way of knowing if Alito might rule differently on the court after the Raich medical marijuana decision.




*Note: this doesn't sound like a fair assumption because the Court has generally been far more liberal in upholding the federal government's commerce power in cases involving the transportation of an object (even when the transportation purely intrastate such as the transportation of explosives) in order to regulate and protect the instrumentalities of interstate commerce or the persons or objects being transported than it has in allowing Congress to use the commerce power to regulate purely intrastate activities that might have a "substantial effect" on interstate commerce (such as the mere possession of a firearm).
11.28.2005 4:38pm
Thorley Winston (mail) (www):

This discussion has obviously not been much about Rybar (although in fairness to other commenters, if you didn't hear the NPR piece, which I didn't, it would be hard to comment on a notice announcing the NPR piece).


Actually if you follow the original link provided by David Kopel, you can listen to it online. It's about five minutes long and does a pretty good job of relating Alito's dissent to the issue of federalism.
11.28.2005 4:49pm
Anderson (mail) (www):
Well, I thought the majority drop-kicked Alito's dissent squarely between the uprights, so what do I know?

Lopez to me was a shot across the bow to Congress not to expand the Commerce Clause beyond all reasonable limit. The majority pointed out, correctly I think, that the law in question in Rybar fell well within the historical range of what Congress has been allowed to regulate, gun-wise.

Question for Alito fans: would Rybar, correctly decided (Alito's way), create a narrow exception to Congress's power to regulate guns? Or would it imply (for future cases) that a great deal of Congress's regulations are themselves unconstitutional? Where does it end, in other words?

[DK: Alito's dissent in Rybar made it very clear that he would have gone the other way if Congress had made findings about the relationship between machine guns and interstate commerce. That distinguishes the 1986 machine gun ban (with no findings) from the Gun Control Act of 1968, which has extensive findings about interstate commerce. In a Connecticut Law Review article, "Taking Federalism Seriously" (http://www.davekopel.com/CJ/LawRev/Taking_Federalism_Seriously.htm), Glenn Reynolds and I argue for a far broader reading of Lopez, but Alito in Rybar plainly was not willing to go so far.]
11.28.2005 5:46pm
JosephSlater (mail):
Thorley Winston:

Thanks for summarizing the debate.
11.28.2005 7:01pm
PierreM (mail):
re: Congress' power to regulate guns

People here seem to forget that the 1934 Firearms Act was not a 'gun control' measure, but a 'tax'. You had to register the firearm and pay a tax (quite substantial at the time). And you still do.

The law was phrased that way specifically to avoid a 2nd Amendment challenge (as made clear by the SG's argument in Miller if I remember correctly).

Like Capone, they could have gone after the guy on tax evasion charges without pushing the Commerce Clause into the 'emanation of a penumbra' territory of fallacious reasoning like Griswold.
11.28.2005 10:34pm
therut (mail):
It was a gun control measure cleaverly passed as a tax. The purpose was not to raise revenue but to control machine guns by taxing them.. I think that is unconstitutional. Do we tax other things in order to ban a right?????????????????????????? Despicable then as now. Plus the MSM really makes me mad. Machine guns have not been banned. They are legal to own in all but 12 states. What Congress did was use their taxing power to effectively raise the price of owning (Keeping) said firearms from all except the rich. My, what an egalatarian democratic concept. DESPICABLE. Wonder what would be said if Congress taxed abortions at say 5,000.00 a pop? Would that be constitutional..NOW and the LEFTIES would scream bloody murder. How about if they used the commerce clause to regulate abortions. Something along the lines of how they get away with Federal money spent on public education. Surely all those lives not here somehow affects interstate commerce as it seems everthing else does.
11.28.2005 11:25pm