WASHINGTON - December 20 - The Brady Center to Prevent Gun Violence announced today that it is opposing the nomination of Judge Samuel Alito to the U.S. Supreme Court. This is the first time the Brady Center has opposed a Supreme Court nomination.
Judge Alito's nomination poses serious dangers to the safety of our communities, our families, and our children, as evidenced by his troubling dissent in U.S. vs. Rybar, 103 F.3d 273 (3rd Cir. 1996). In that case, Judge Alito argued that the federal machine gun ban amounted to an unconstitutional exercise of Congressional power under the Commerce Clause. Alito attempted to erect arbitrary hurdles to Congressional efforts to reduce the availability of machine guns to the criminal element.
In unusually harsh language, the Rybar majority criticized Alito's dissent as having "no authority" in the law and "run(ning) counter to the deference that the judiciary owes to its two coordinate branches of government...." If Judge Alito's dissent were to be adopted by the Supreme Court, it would place in jeopardy the ability of Congress to protect the public from gun violence.
Dennis Henigan, Director of the Brady Center's Legal Action Project, remarked, "Judge Alito's conclusion that the federal machine gun ban is unconstitutional is right-wing judicial activism at its worst. He demonstrated no respect for the judgment of Congress in seeking to protect the public from the grave dangers of fully automatic weapons."
In addition to being the dissenting view in the Third Circuit, Judge Alito's conclusion that the machine gun ban violates the Commerce Clause is so far out of the mainstream of Constitutional jurisprudence that it has been rejected by every other federal appellate court that has considered the issue, including the Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits. The Supreme Court has been asked to review lower court decisions upholding the ban six times and has declined in each case. In June 2005, the Supreme Court issued its latest ruling on Congressional power under the Commerce Clause in Gonzales vs. Raich, 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 that had declared the machine gun ban to be unconstitutional.
Senators have expressed concerns about Judge Alito's judicial activism in the Rybar case, including Republican Sen. Tom Coburn of Oklahoma. In a Nov. 6, interview on Meet the Press, Sen. Coburn was asked about Alito's dissent in Rybar, and Coburn agreed with the Brady Center that it represented improper judicial activism. Coburn stated, "Those aren't decisions judges should be making. Those are decisions legislators should be making. And that's how we've gotten off on this track is, that we allow judges to start deciding the law...." Sen. Coburn went on to state that Alito's Rybar opinion was "wrong" and amounted to "legislating" from the bench.
In the Rybar case, Raymond Rybar, Jr., a federally licensed gun dealer, attended a gun show in Monroeville, Pennsylvania on April 4, 1992. He possessed a fully automatic Chinese Type 54, 7.62-millimeter submachine gun, which he sold to Thomas Baublitz. The next day Rybar returned to the gun show and sold Baublitz another fully automatic firearm, a U.S. Military M-3, .45 caliber submachine gun. The guns were sold for a total of $600. Rybar pleaded guilty to two counts of unlawfully possessing a machine gun, with the condition that he be allowed to appeal to allege that the federal machine gun possession restrictions were unconstitutional. If Judge Alito had prevailed in the Rybar case, Raymond Rybar, Jr. would have been set free.
Machine guns are fully automatic weapons that have been heavily regulated since 1934. They fire continuously with one pull of the trigger and can discharge hundreds of rounds in seconds. In 1986, President Reagan signed a federal law banning the manufacture of machine guns for the civilian market and banning the transfer and possession of machine guns not lawfully possessed before May 19, 1986. These "grandfathered" machine guns remain subject to strict registration, possession, transfer, and taxation requirements.