Michael Herrick

Samuel Alito and gun control

Just came across this article again that I wrote several years ago, right around the time Bush nominated Samuel Alito for the Supreme Court. Re-reading it made me laugh, so I’m republishing it now on the off chance that it might amuse someone else at least a tenth as much as it did me.

An attorney of my acquaintance — let’s call him ‘Lawrence’1 — maintains a joke email list of which I am a beneficiary. As everyone knows, the cost of sending email has risen greatly since the start of the Iraq war, forcing my friend to subsidize his joke service with a high volume of political commentary. Naturally, I find this hilarious, which is why I don’t unsubscribe.

Some of the opinions “Lawrence” expresses in his political digressions seem a little strange for a Catholic constitutionalist. At least I assume “Lawrence” is a Catholic constitutionalist, because I always assume that everyone I know shares the same political and religious beliefs that I do. That’s what makes having friends so interesting.

Take for example “Lawrence’s” recent condemnation of Supreme Court appointee Samuel Alito. Although the subject line of the email begins with “Joke:”—in order to facilitate automated email filtering, I guess—it gets pretty heavy pretty quick and urges me to “Just read Judge Alito’s published opinions and think about them.” That sounds like a good idea. Oh look. There’s one of his published opinions, right in the same joke. That’s funny. Well, let’s start thinking.

It’s a complicated question of gun control policy, but “Lawrence” is making it easy for me with clear summaries, relevant quotes and helpful italics. Looks like Alito was a judge on an appeals court hearing from a machine-gun owner who claimed his Second Amendment rights were infringed, apparently by being thrown in the slammer. And Alito dissented from the majority opinion. Dear dear. In fact, it looks like he not only dissented, he dissented [denunciatory italics courtesy my friend]. No need to say what the majority opinion was. I think we all know from high school civics how important gun control is and appreciate it as a core value that our country was founded on. Well, Alito dissented. I scan ahead and find additional italics. I’ll say this for my friend; he can pick out the important sentence, and here it is in italics. According to Alito:

Congress did not have the power under the Commerce Clause to enact the ban on machine gun possession.

Now I think that’s quite a sentence. Read it very carefully. I’ll help you with some italics of my own:

Congress did not have the power under the Commerce Clause to enact the ban on machine gun possession.

See those words? Watch this. I cut the deck and add one ordinary grammatical linker. Nothing up my sleeve. Presto:

Commerce [is] not possession.

Could I have a volunteer from the audience? You sir. Come on, don’t be shy. Let’s give him a big hand folks. Very good. Now just hold these words. No, right there in your hands. Yes, just like that. Hold them very tightly, okay? Ready? One, two, three, Shazaam!

[Buying and selling something] [is not the same thing as] [owning something]

Ladies and gentlemen, I give you—a truism! An incontrovertibly true fact—and from a lawyer no less! A simple self-evident statement so undeniable that only another lawyer could deny it. Because that’s what “Lawrence” proceeds to do.

You see, whether they are true or not, truisms are often dangerous. A truism hardly has time to cool before some joker skates in with a minor premise. Like the Constitution. Next thing you know, you’ve got a syllogism and you’re combing ramifications out of your hair.

Not everyone can see it of course. Legislators, for example, are really excellent at not seeing it a lot. So you get conversations in Congress that go something like this, after you fix the misspellings:

Guns bad. Must stop guns.

—Can’t stop guns. Second amendment. Goddam Charleton Heston.

Hm. Hm. Oh look. Commerce clause!

—Commerce clause give us power!

Commerce clause make us strong!

—No. No. Commerce clause stop people buying guns. Not stop people owning guns.

Oh. Commerce clause not work.

—Wait! Owning like buying!

Owning not like buying.

—Yes, yes! Owning like buying!

Owning like buying?

—Owning same thing!

Yes! Same thing as buying!

—Commerce clause make us strong!

Commerce clause stop guns!

Six martinis later, some schmuck in Texas gets arrested for selling two machine guns at a gun show. “What about the Second Amendment?” he cries in bewilderment. “Here’s your frigging Second Amendment, you loon,” says the cop. “Watch your head, sir.” The loon shouts, “I got rights!” but the judge is having none of it. “You think you’re the only one with rights, pal? Congress has rights. You sell something, you buy something—hell, you just own something—and we have the right to call it a crime if we want to because the Commerce clause says so.” The NRA attorney in the excellent suit stands up. “Judge, the Commerce clause of the Constitution clearly limits Congress’ power to interstate commerce. My client’s transaction was with another Texas resident, making it an intrastate transaction and therefore outside the scope of the Commerce clause.” “Tomato, tomahto,” says the judge and Charleton Heston sends out a fundraising letter with Billy Bob’s picture on it.

Fortunately, there’s an Appeals Court, which is a great idea, but they’re all pretty much of the “tomato-tomahto” school and Billy Bob doesn’t even bother shaving this morning. But one judge dissents. We don’t know what he thinks about gun control, still less what he thinks about Billy Bob, but he makes it pretty clear what he thinks about the Constitution and the law and all the other judges he’s voting against. He sums up with a reductio ad absurdam:

[T]he majority’s theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything.

That’s Samuel Alito, denying the constitutionality of this particular gun control law. “Inter” and “Intra” require a refined midwestern accent to distinguish but they still have separate entries in the dictionary, and owning, according to Judge Alito, is not, in fact, the same thing as buying and selling. To confuse these issues leads inevitably to the conclusion that Congress can do whatever it damn well pleases. You’ll find that view in many places, but not, thank you, in the Constitution.

Back to my friend, he registers dismay and indignation:

In this case, it appears that Congress’ powers would be limited by Judge Alito to ZERO.

Now I get the joke. This looks like an exaggerated, inflammatory accusation from a political opponent. The kind of thing Judge Alito should want to distance himself from. We might imagine him defending himself. “You’ve taken my words out of context,” he might say. “It’s a lot more complicated than that.”

But I think—and here’s the gag—that Alito would agree very matter-of-factly. “That’s right. In this case, Congress has no power.” Pull out one of those new nickels and take a close look at the “heads” side. Sometimes it looks like he’s smiling.

But what about gun control! What about AK-47s! What about Stinger Missiles! (Yes, this happens in the email, only funnier.) All fine questions for a legislator. But Alito isn’t a legislator. Or not directly. As a private citizen, he is a legislator just like I am, because he votes for legislators. He probably has an opinion about gun control and he probably votes for legislators who will advance his views. But as a judge, his views are irrelevant. His job as judge is to read the law and apply it. His judicial opinions tell us nothing about whether he considers gun control to be good or wicked, prudent or foolhardy, only that he considers this particular effort at gun control to be based on a lie. And if we read the Constitution, we find his opinion amply supported.

Whether we want gun control or not, we have to admit that the Commerce clause is not going to give it to us. That can make us relieved or indignant, as we wish. The indignant have the option of passing a Constitutional amendment. Seeing as how that takes so much time and effort, they may find it easier to work with judges who can see penumbral emanations. Judge Alito doesn’t seem to be that kind of judge. Which can make us relieved or indignant, as we wish.

1 Totally his real name

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