25 October 2009

Sotomayor, Alito, and Gun Control

I have to admit that it is interesting seeing the kerfuffle around Sonia Sotomayor's position on the Second Amendment. It means absolutely zip as my early posts regarding Samuel Alito show

The real point is that in conversations and my early blogs, I pointed out that Justice Alito was on the three judge panel that decided U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996). That was the case which earned him the nickname "machinegun Sammy". But, I have been pointing out as frequently as I can that this case addressed the personal right interpretation of the Second Amendment which was raised as a defence by Rybar. The Rybar court held that the Second Amendment was a collective right, which means that it is to ensure the efficacy of the Militia institution set up under Article I, Section 8.

Justice Alito did dissent, but he did so in a manner similar to Justice Kennedy did in US v Lopez, 514 U.S. 549 (1995) which was to say that he would have found the machinegun statute constitutional had Congress provided a finding that these items were in interstate commerce.

Now, I have raised the question whether this means that Justice Alito follows the collective right interpretation of the Second Amendment whenever I can. I am also curious if stare decisis precludes Justice Alito from taking the individual right interpretation, which most commentators are not sure. I would like to think that it does. Or, failing that, I would like to think that Justice Alito is what I consider a true conservative rather than the idiots who call themselves conservative these days. This means that Justice Alito knows the accepted judicial interpretation of the Second Amendment, which is that it is to ensure the efficacy of the militia set up under Article I, Section 8 and has nothing to do with self-defence, hunting, or shooting sports in general.

No, had Justice Alito stuck by his position in U.S. vs. Rybar, 103 F.3d 273 (3rd Cir. 1996), we would have seen a drastically different outcome to DC v. Heller.

The real point her is that Justice Sotomayor can vote whatever position her heart desires, which is contrary to proper Judicial practice. But, hey, they started it first!

As I keep saying, I am not sure what trend is starting with DC v.Heller,but I don't like it.