Machine Gun Sammy Redux
Bob Egelko of the S.F. Chronicle spins the Samuel Alito dissent in U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996) for all it’s worth, and then some. He starts off by throwing in the gratuitous adjective “lone,” for no apparent purpose other than to make Judge Alito’s position sound more marginalized than it is:
In a lone dissenting opinion as a federal appeals court judge in 1996, Alito argued that the federal ban on possessing machine guns was unconstitutional — a stand described by both admirers and detractors Tuesday as one of the most revealing cases in the lengthy judicial record of President Bush’s nominee to the U.S. Supreme Court.
[Emphasis added.]
Was Judge Alito a “lone” dissenter in that case? Technically, yes. Then again, so is every other judge who dissents in any appeal decided by a three-judge panel. When only three judges vote, it kinda goes with the territory: if Judge Alito had not been alone in his opinion, it wouldn’t have been a dissent; it would have been the majority ruling.
Nevertheless, as misleading as the above statement may have been, at least it was not factually untrue, which is more than I can say for this one:
Critics of Alito’s 1996 opinion point out that the machine-gun law has been upheld by every federal court that has considered it.
In fact, as recently as two years ago, a three judge panel in our own Ninth Circuit Court of Appeals did exactly the opposite, ruling 2-1 in USA v. Stewart that the machine gun law in question (18 U.S.C. § 922(o)) was unconstitutional for precisely the same reason Judge Alito had articulated seven years earlier. Yet, for some odd reason Egelko’s article contains no reference to Stewart, nor even to to Judge Restani’s “lone” dissent upholding the law Judge Alito would have stricken down.
Cross-posted to Oh, That Liberal Media.
November 3rd, 2005 at 12:57 pm
Ahem:
“Lone dissent” (indicates the judge dissented from liberal orthodoxy)
“Courageous dissent” (indicates the judge tried to uphold liberal orthodoxy but the idea was just too blinkin’ stupid to get a majority.)
Didn’t you get the memo?
November 3rd, 2005 at 4:38 pm
Curry: Senate has clear choice in Alito
It is symbolic of the Senate battle ahead that one of federal appeals court Judge Samuel Alito?s bes
November 4th, 2005 at 6:33 am
[...] The Ninth Circuit Court of Appeals, those right-wing extremists who happen to agree with Alito on machine guns, may be split in two: Buried deep in the massive House spending-cut proposal is a provision to do what many conservatives have been wanting to do for years: split up the liberal 9th U.S. Circuit Court of Appeals and allow President Bush to appoint some new judges to it. [...]
November 7th, 2005 at 6:12 pm
The bad news about United States v. Stewart is that the Supreme court remanded it back to the 9th circuit for review in light of Raich. It really is a beautifully written opinion, it’ll be sad to see it gutted by Raich.
Be careful what you wish for!