- The Washington Times - Friday, November 4, 2005

When Chief Justice John Roberts was nominated, Democrats worried he was willing to overturn the Endangered Species Act. Now they warn that Samuel Alito, President Bush’s latest Supreme Court pick, is hostile to federal gun control.

Together, presumably, Justice Roberts and Judge Alito would bring us two votes closer to an America where Congress can’t prevent the machine-gunning of arroyo toads. I wish.

Both men have expressed doubts that Congress may pass any legislation it pleases under the pretext of regulating interstate commerce. But a closer look at their positions suggests neither is inclined to seriously limit congressional power.

For statists of both parties, the main cause for concern about Chief Justice Roberts was a 2003 case in which a three-judge panel of the U.S. District of Columbia Circuit Court of Appeals upheld federal land-use restrictions aimed at protecting the arroyo toad. When the full court declined to rehear the case, Judge Roberts dissented, noting the panel’s analysis meant “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘commerce … among the several states.’ ”

But as John Roberts emphasized during his confirmation hearings, he did not join a dissent in which Judge David Sentelle concluded the regulations were unconstitutional. During the Senate hearings, Chief Justice Roberts implied he would have been happy to uphold the regulations under a Commerce Clause test different from that used by the three-judge panel.

Justice Roberts reinforced the impression he takes a broad view of the Commerce Clause by taking a narrow view of U.S. v. Lopez, the 1995 case in which the Supreme Court overturned a federal law prohibiting gun possession in or near schools. This was the first time in 60 years the court had deemed an act of Congress outside the Commerce Clause bounds, and it was widely seen as signaling a new determination to enforce the distinction between state and federal powers.

Yet according to Justice Roberts, the crucial defect in the Gun-Free School Zones Act was its lack of a “jurisdictional element” requiring the government to show a firearm involved in a violation had traveled at some point in interstate commerce. In 1996 Congress passed a new version that includes this (as Justice Roberts noted) generally easy-to-meet requirement.

At first blush, Judge Alito has a broader take on Lopez. In 1996, he dissented from a decision by the U.S. 3rd Circuit Court of Appeals that rejected a Commerce Clause challenge to the federal machine-gun ban.

Judge Alito noted that, like the Gun-Free School Zones Act, the machine-gun ban prohibited mere possession within a single state, lacked a jurisdictional element and was not based on a finding the proscribed behavior had a “substantial effect” on interstate commerce. “If Lopez does not govern this case,” he wrote, “it may well be a precedent that is strictly limited to its own peculiar circumstances” — a kind of “constitutional freak.”

At the same time, Judge Alito indicated he would have voted to uphold the law if it included a jurisdictional element and that “it might be sustainable” if Congress had made findings concerning the effect of machine-gun possession on interstate commerce. These readily satisfied requirements would have little practical effect on the scope of federal legislation.

As Associate Justice Clarence Thomas has argued for years, the Supreme Court cannot enforce principled limits to the Commerce Clause as long as it allows Congress to regulate not only interstate commerce but anything (including, we discovered this year, homegrown medical marijuana) said to have a “substantial effect” on it.

Chief Justice Roberts told the Senate Judiciary Committee he has “no agenda to overturn or revisit” that doctrine, and it seems unlikely Judge Alito does either. Sad to say, it seems the “constitutional freak” is Justice Thomas.

Jacob Sullum is a nationally syndicated columnist.

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