Handguns, rifles, assault weapons-they've always been easy to get under federal law in America. Even when semi-automatic (firing one bullet per trigger pull) assault weapons were allegedly banned in 1994, the gun industry barely missed a beat. Manufacturers made a few minor, cosmetic changes and had the guns back on the market in no time. In fact, when efforts to pass an effective ban failed in September 2004 and the law expired, there were actually more types of assault weapons available for sale in America than when the law was first enacted.
Legally obtaining a fully automatic machine gun--a gun that as long as you press the trigger will spray bullets until you run out of them--is a little harder. That's because in 1986, Congress banned the future production of machine guns for civilian possession. The ban finished the job that Congress started in 1934 by strictly regulating the manufacture, transfer, and possession of machine guns in an effort to curb mob-related violence. The 1986 ban left a relatively paltry pool of approximately a quarter million machine guns available for "full-auto" enthusiasts-- shooters most at home in sand pits blazing away at abandoned vehicles, refrigerators, paint cans, and propane tanks while complaining about the gubmint--willing to go through the rigorous sales and transfer criteria established by Congress in 1934.
Following passage of the machine gun ban in 1986, National Rifle Association head Wayne LaPierre, then an NRA lobbyist, stated, "Repealing the machine gun amendment...will be a high priority," promising that the NRA would "take all necessary steps to educate the public on the sporting uses and legal ownership of automatic firearms." When Members of Congress failed to step over one another to join this crusade, the NRA quietly shelved the campaign, giving bereft machine owners something new to gripe about while ventilating foreign compact cars.
But now the NRA and their sand-pit allies have a new friend: Supreme Court Nominee Samuel Alito.
In his dissenting opinion in the 1996 federal court case U.S. v. Rybar, Alito urged that the 1986 federal ban on machine guns be struck down. In the case, Federal Firearms License (FFL) holder Raymond Rybar was convicted of illegal possession and transfer of unregistered machine guns, a violation of the 1986 ban (18 USC §922(o)). Rybar was illegally selling the weapons in 1992 at a gun show in Pennsylvania, adding yet another example of such events' well deserved reputation as Tupperware® Parties for Criminals.
Rybar challenged the constitutionality of the ban on two grounds. First, that the law exceeded Congress' regulatory authority under the Commerce Clause. Second, that the law illegally restricted Rybar's "right" to keep and bear arms under the Second Amendment.
The majority's 1996 opinion in U.S. v. Rybar upheld the conviction and ruled that the machine gun prohibition was a permissible regulation of an activity that substantially affected commerce. Judge Alito was the sole dissenter. Citing U.S. v. Lopez, the Supreme Court's 1995 decision striking down the federal Gun-Free School Zones Act on Commerce Clause grounds, Judge Alito challenged Congress' fact-finding, and even judgment, in enacting the machine gun ban, asserting:
"...we are left with no congressional findings and no appreciable empirical support for the proposition that the purely intrastate possession of machine guns, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce, and without such support I do not see how the statutory provision at issue here can be sustained...."
The majority responded with the equivalent of a legal dope slap, stating, "Nothing in Lopez requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." The majority also rejected Rybar's Second Amendment challenge to the machine gun regulation-an issue Alito's dissent did not bother to address. The United States Supreme Court declined to hear the appellant's appeal.
To gauge how out of the mainstream Alito's views on this are, when they were first revealed, The New Republic's Legal Affairs Editor, Jeffrey Rosen, labeled the nominee's view on guns "far more troubling" than his views on abortion rights, stating:
"Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it."
Taken to its logical conclusion, Alito's views could result in virtually every federal gun, ammo, and explosives law being overturned. This is because since 1938, every major gun federal gun control law has been enacted under the Commerce Clause. These include the Federal Firearms Act of 1938, which requires firearm manufacturers and dealers to obtain federal licenses before engaging in interstate commerce, and the Gun Control Act of 1968, which broadened existing restrictions on handguns to include a ban on interstate sales, banned mail-order sales of shotguns and rifles, and prohibited the importation of so-called Saturday Night Specials--inexpensive, short-barreled handguns of the type used by Sirhan Sirhan to kill Senator Robert Kennedy. The federal assault weapons ban survived two challenges arguing that Congress had exceeded its authority under the Commerce Clause in enacting the ban
The regulation of intrastate conduct is the cornerstone of federal gun and explosives regulation. In 2002, Congress passed the Safe Explosives Act, which expanded the licensing authority of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to include the intrastate manufacture, purchase, and use of explosives. If Judge Alito's views on firearms and public safety, as expressed through his minority opinion in U.S. v. Rybar, became the law of the land, all Americans would be at greater risk from virtually uncontrollable firearms proliferation. The federal government would be almost powerless to keep firearms, ammunition, and other deadly commodities out of the hands of criminals and even terrorists. In a time of increased concern regarding homeland security, such views are not only counter-intuitive, but exceedingly dangerous. While Judge Alito may be a newfound friend to the sand pit crowd, he is a clear threat to everyone else.