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ALITO TOOK SCORNED VIEW ON MACHINE GUNS To the editor: Stuart Taylor Jr. apparently takes issue with our view that Judge Samuel Alito Jr.’s dissent in United States v. Rybar is a flagrant example of right-wing judicial activism that would have put thousands more machine guns on our streets, readily available to criminals and terrorists (“Alito Unmasked,” Nov. 7, 2005, Page 50). Instead, Taylor says Alito’s dissent “shows only that Alito favors scrupulous adherence to Supreme Court precedent.” Really? Not only was Judge Alito a dissenter in the 3rd Circuit, but every other federal appellate court that has considered the issue has rejected Alito’s view that Congress lacks commerce clause power to ban possession of machine guns. That includes the 2nd, 5th, 6th, 7th, 8th, 9th, 10th, and 11th Circuits. Apparently the Supreme Court is untroubled by these rulings. On six occasions the Supreme Court has been asked to review lower court decisions upholding the machine gun ban. It has declined in each case. If Alito’s way is not “out of the mainstream,” then what is? Taylor says Alito was simply insisting that, in banning machine guns, Congress need simply “dot its i’s and cross its t’s by documenting some effect on interstate commerce.” A true believer in judicial restraint would not view the role of the federal courts as insisting that Congress incant exactly the right magic words in fulfilling the legislative function on pain of violating the Constitution. Particularly on issues of public safety, Congress deserves the widest possible deference by the judiciary. In light of Judge Alito’s Rybar dissent, it is difficult to give serious regard to Taylor’s statement that Alito “takes the ideal of judicial restraint very seriously.” I suspect the machine gun opinion will haunt Alito and his supporters throughout the confirmation process. Dennis Henigan Director, Legal Action Project Brady Center to Prevent Gun Violence Washington, D.C.

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