In a lone dissenting opinion as a federal appeals court judge in 1996, Alito argued that the federal ban on possessing machine guns was unconstitutional — a stand described by both admirers and detractors Tuesday as one of the most revealing cases in the lengthy judicial record of President Bush’s nominee to the U.S. Supreme Court.
I would note, however, that his reasoning in this case was based on commerce clause grounds and not the Second or Fourteenth Amendments. What makes me nervous about Alito was his deference to the government in his dissent in the Stevens case. My other concern is that he’s from New Jersey — he grew up in Hamilton about 15 minutes from where I live. I don’t know how familiar he is with the issue and the gun culture. Now Scalia is from New York City, but Scalia also is a hunter and a shooter, and even has stories about how you used to be able to carry a rifle on the New York Subway system without everyone freaking out. So my concern is likely a case of the jitters.
At this point I’m not worried that we have lost. I think we will have won McDonald at the end of the day on Monday. My worry is that we’re going to get dicta that’s less firm that we need it to be. Granted, the important thing is that we win, and it looking likely. Let’s hope my fears are completely unfounded, and this turns out to be a solid,Â decisiveÂ opinion.