Alito's Libertarian Streak

Alito also differs from Scalia on the key issue of federalism. In United States v. Rybar (1996), Alito dissented from a case upholding a federal statute banning machine gun possession. Alito argued that a categorical ban on the intrastate ownership of machine guns falls outside of Congress's power to regulate interstate commerce. The case cannot be explained, as some might believe, on the grounds that Alito somehow sympathizes with private ownership of machine guns. In the opinion, he favorably refers to state bans on machine gun possession. Alito's position differs from Scalia's recent opinion in Gonzales v. Raich, where the Justice argued that the commerce power justified upholding a federal ban on the possession of marijuana, even for noncommercial medical purposes permitted under state law.

Ilya Somin