Many groups have raised the issue of Judge Alito’s dissent in US v, Rybar where he ruled a federal law banning machine gun possession unconstitutional. If you listen to all the attacks on Alito you would think his decision was based on a deep preference for gang bangers to have machine guns instead of a state’s rights issue.

I have to admit that Alito’s decision on the machine gun issue had actually made me somewhat hopeful about his judicial philosophy. Rumors have been floating around that Alito is particularly deferential to government and other established authority and this case would have suggested otherwise. If my conception of this case had been correct it would have actually challenged the famous Filburn decision which held that congress had the power to regulate purely intrastate activity so long as it dealt with a fungible commodity that did impact interstate trade.

Breathing life back into the commerce clause has long been a conservative clause but especially now that the republicans control the national government devolving power to the states benefits everyone. Overturning Fliburn might prevent machine gun legislation but it would also overturn Ashcroft v. Raich and give the states the right to experiment with marijuana. I think this model of state experimentation clearly reflects both the intent and text of the constitution and the decision in Filburn was coerced by undue pressure from Roosevelt’s court packing plan. More than just being what is required by the constitution it is a good idea. Different states have differing populations and there is no reason to suppose the risk/reward calculation that works for one also works for another.

Unfortunately all this speculation is for naught. Actually reading Alito’s decision (see bottom) it becomes clear that he struck down the law on a mere technicality. Apparently congress had forgotten to include a section justifying the power exercised under the commerce clause. All congress needed to do is append a little note saying there is interstate commerce in machine guns and everything would have been fine.