The Nov. 21 editorial "Judge Alito on the States" expressed concerns about Judge Samuel A. Alito Jr.'s dissenting opinion in U.S. v. Rybar. Those concerns, however, appear to be based on two misunderstandings.
As the editorial noted, the Supreme Court had held in U.S. v. Lopez that Congress did not have the authority, under its power to regulate interstate commerce, to prohibit possession of firearms near schools because mere possession is not a commercial activity. The editorial said that Judge Alito wanted to extend the logic of Lopez to question a law that would have "banned both transfer and possession of machine guns." This is not quite true.
Although Congress had prohibited both the possession and transfer of automatic firearms, as Judge Alito noted in his opinion, only the provision that banned possession, not transfer, was before his court in Rybar. When viewed in this light, it is difficult to fault Judge Alito's position: If possession of any firearm in Lopez was not a commercial activity, surely the possession of some firearms -- automatic ones -- in Rybar was not a commercial activity either, at least under Supreme Court precedent.
The editorial also asserted that "no other circuit that considered the matter agreed" with Judge Alito in Rybar. Again, this is not quite true.
Some circuit courts did disagree with him, but most did so before the Supreme Court's Lopez precedent, upon which Judge Alito based his opinion. As for the courts that considered the issue after Lopez, the 9th Circuit agreed with Judge Alito in 2003 in U.S. v. Stewart.
U.S. Senator (R-Tex.)