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This is Alito's dissenting opinion in U.S. v. Rybar:

Note: Very long

Quote:

ALITO, Circuit Judge, dissenting:

Was United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624,
131 L.Ed.2d 626 (1995), a constitutional freak? Or did it
signify that the Commerce Clause still imposes some meaningful
limits on congressional power?

The statutory provision challenged in this case, the portion
of 18 U.S.C. section 922(o) that generally prohibits the purely
intrastate possession [Footnote 1] of a machine gun, is the
closest extant relative of the statute struck down in Lopez, 18
U.S.C. section 922(q)(1)(A), which made it a federal offense
knowingly to possess a firearm in a school zone. Both are
criminal statutes that regulate the purely intrastate possession
of firearms. Both statutes, departing from the mold of prior
federal criminal statutes governing firearms possession, lack a
jurisdictional element, [Footnote 2] that is, they do not require
federal prosecutors to prove that the firearms were possessed in
or affecting interstate commerce. Compare, e.g., 18 U.S.C.
section 922(d). And in passing both statutes, Congress made no
findings regarding the link between the intrastate activity
regulated by these laws and interstate commerce. If Lopez does
not govern this case, then it may well be a precedent that is
strictly limited to its own peculiar circumstances. That may be
what the majority here would like, see Maj. Op. at ---- (citation
omitted) ("challenges based on Lopez '[a]lmost invariably'
fail"), but our responsibility is to apply Supreme Court
precedent. That responsibility, it seems to me, requires us to
invalidate the statutory provision at issue here in its present
form.

This would not preclude adequate regulation of the private
possession of machine guns. Needless to say, the Commerce Clause
does not prevent the states from regulating machine gun
possession, as all of the jurisdictions within our circuit have
done. See Del.Code Ann. tit. 11, section 1444 (1995);
N.J.Stat.Ann. section 2C:39-5a (West 1995); 18 Pa.Cons.Stat.Ann.
section 908 (1996); V.I.Code Ann. tit. 14, section 2253 (1994).
Moreover, the statute challenged here would satisfy the demands
of the Commerce Clause if Congress simply added a jurisdictional
element--a common feature of federal laws in this field and one
that has not posed any noticeable problems for federal law
enforcement. In addition, as I explain below, 18 U.S.C. section
922(o) might be sustainable in its current form if Congress made
findings that the purely intrastate possession of machine guns
has a substantial effect on interstate commerce or if Congress or
the Executive assembled empirical evidence documenting such a
link. If, as the government and the majority baldly insist, the
purely intrastate possession of machine guns has such an effect,
these steps are not too much to demand to protect our system of
constitutional federalism.

I.

In Lopez, the Supreme Court identified "three broad
categories" of legislation permitted under the Commerce Clause:
(1) regulation of "the use of the channels of interstate
commerce, (2) regulation and protection of "the instrumentalities
of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate
activities," and (3) regulation of "activities that substantially
affect interstate commerce." [Footnote 3] --- U.S. at ---- -
----, 115 S.Ct. at 1629-30.

The majority in this case quite properly focuses its
analysis primarily on the third of these categories--Congress's
power to regulate those "activities that substantially affect
interstate commerce"--because this is plainly the category under
which 18 U.S.C. section 922(o) must be analyzed. But panels in
the Fifth, Sixth, Ninth, and Tenth Circuits have tried to
shoehorn 18 U.S.C section 922(o) into the first or second
categories, and the majority cannot bring itself to acknowledge
these courts' errors. Therefore, without embracing or
repudiating the reasoning of these other courts, the majority
writes:

Whatever the category relied on, it is telling that each of
our sister circuits has found that the regulation of machine
gun transfer and possession comes within Congress' power to
legislate under the Commerce Clause. That uniform result
confirms the observation made in United States v. Bell, 70
F.3d 495, 497 (7th Cir.1995), that, for criminal defendants,
"[i]t appears that United States v. Lopez has raised many
false hopes," and that challenges based on Lopez "[a]lmost
invariably" fail.

Maj. Op. at ---- - ----. This approach requires me to discuss
the first two categories and explain why I believe they are
clearly inapplicable here.READ THE FULL TEXT OF RYBAR