For John Roberts, it was a "hapless toad'' in the path of a California housing development that represented the limits of the federal government's power to regulate activities within a state. For Samuel Alito Jr., it was a machine gun.
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.
"He understands the original design of the Constitution as being one of limited government,'' said Roger Pilon, director of the Center for Constitutional Studies at the libertarian Cato Institute. In his opinion, Alito said the federal ban on possessing machine guns exceeded Congress' power to regulate interstate commerce, but a majority of his court disagreed, and the Supreme Court denied review. He took no position on whether the Constitution protects an individual's right to possess firearms.
Pilon said the case showed Alito's recognition that Congress' constitutional power to regulate interstate commerce is not a license "to regulate anything and everything.''
But Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, said the opinion is "perhaps the most powerful evidence that Judge Alito is very much a right-wing judicial activist'' willing to disregard congressional judgment. Another critic, Douglas Kendall, executive director of the Community Rights Counsel, said Alito's opinion is disturbing for reasons that have little to do with gun control.
The case "suggests that he will impose rather significant limits on federal authority'' over interstate commerce, the basis for a wide range of laws, said Kendall, whose Washington, D.C., organization supports regulation of the environment and public health. He said the issue of federal power is critical to two cases the Supreme Court plans to review this term testing the limits of the government's authority to prohibit pollution of wetlands under the Clean Water Act.
The machine gun case was decided by the Third U.S. Circuit Court of Appeals in Philadelphia a year after the U.S. Supreme Court overturned as unconstitutional a federal law banning gun possession near schools. The Supreme Court said congressional power over interstate commerce does not extend to guns that might have been obtained within the state and were not being used for any commercial purpose -- the first ruling to overturn a law on interstate commerce grounds since the 1930s.
Pennsylvania gun dealer Raymond Rybar Jr., sentenced to 18 months in prison for possessing and selling two machine guns, argued in his appeal that a 1986 federal law banning the possession or transfer of machine guns was unconstitutional because it applied to weapons that had never crossed state lines or affected interstate commerce. A 2-1 majority of the appeals court disagreed.
Unlike the law on guns near schools, the court majority said, the machine-gun ban was supported by findings in federal gun laws since the 1930s that there was widespread interstate traffic in guns, including surplus military weapons from other countries, and that state regulation was inadequate. Another distinction, the court said, is that the 1986 law applied to all areas of the nation and not just to possession of guns in certain local areas.
Alito began his dissenting opinion by suggesting that the majority was treating the Supreme Court's 1995 ruling as "a constitutional freak'' rather than a recognition that the Constitution "still imposes some meaningful limits on congressional power.''
Congressional findings about gun trafficking in older laws were irrelevant, he argued, to the question of whether possessing a machine gun has any effect on interstate commerce. Whatever role machine guns play in nationwide crime, Alito said, the mere act of possessing one within a state is no more of an interstate, or economic, activity than possessing a gun near a school.
He said the law might be valid if it was limited to machine guns that crossed state lines, or if Congress had included findings about the impact of those weapons on interstate commerce. That suggestion was derided by the court majority, which said Congress was not required to "play Show and Tell with the federal courts'' to validate a law.
The same legal issue arose during Roberts' confirmation as chief justice in September, based on a dissenting opinion he wrote as an appeals court judge in 2003. The opinion questioned federal authority to protect a "hapless toad'' that was found only in California and had no obvious connection to interstate commerce. Roberts, at his confirmation hearing, said he had never meant to suggest that the government lacked power to protect endangered species.
The Supreme Court is closely divided on conflicts between federal and state power, in cases ranging from environmental regulation to civil rights. Justice Sandra Day O'Connor, whom Alito has been nominated to succeed, has been a strong supporter of state autonomy.
Critics of Alito's 1996 opinion point out that the machine-gun law has been upheld by every federal court that has considered it. Rybar, the Pennsylvania gun dealer, appealed his case to the Supreme Court, which denied review.
"When conservatives decry liberal judicial activism, they purport to be talking about judges who are unelected and who second-guess the wisdom of elected legislators,'' said the Brady Center's Henigan. He said the same description applies to Alito's opinion.
A supporter of Alito countered that the judge should not be criticized for going against the grain.
"I think the lower courts after (the 1995 ruling) were resistant to the Supreme Court's direction. Judge Alito was not,'' said Pepperdine University Law Professor Douglas Kmiec. He said the ruling indicates that Alito, as a high court justice, would "strongly defend the federalist structure of the Constitution.''