Luttig or Alito

W

Wildalaska

Moderator
Any folks have any pithy 2A quotes from these front runners (although Alito is from NJ that itself makes me nervous)...

Wildoantitipaswhereareyou?Alaska
 
Don't have any quotes, but Alito's apparently on the GOA's short list, with them mentioning that he has argued that Congress lacks the power to regulate private possession of machineguns.

GOA's entire list:

Janice R. Brown (DC Circuit)
Alex Kozinski (9th Circuit)
Samuel Alito (3rd Cir)
Edith Jones (5th Cir)
Sam Cummings (5th Cir) -Cummings wrote the majority opinionin Emerson
 
Looks Like "Thomasito" Would Be More Appropriate...

Alito dissent in US v Rybar

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?

...

In other words, the majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market. This theory, if accepted, would go far toward converting Congress's authority to regulate interstate commerce into "a plenary police power." Lopez, --- U.S. at ----, 115 S.Ct. at 1633. If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything--then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything.

...

The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? [Footnote 4] Is the possession of a firearm within a school zone somehow less "economic" and "commercial" than possession elsewhere--say, on one's own property? [Footnote 5] If there are distinctions of constitutional dimension here, they are too subtle for me to grasp.
 
Alito: An Upgrade From Scalia

Alito: "Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms?"

Scalia: "Not only is it impossible to distinguish “controlled firearms manufactured and distributed intrastate” from “controlled firearms manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Machine guns are fungible commodities. As the Court explains, machine guns that are built at home and possessed for personal use are never more than an instant from the interstate market–and this is so whether or not the possession is lawful under the laws of a particular State."

OK, so I might have edited Scalia's words a little bit to apply them to a different subject, but that is exactly what the 9th circuit was just ordered to do.
 
i think its disconcerting anytime our government wastes its resources to track down supposed property crimes, when the alleged victims are in industries where they make money hand over fist no matter if they have a bazillion paying customers or a million who share that "intellectual property".
 
In another case decided in 2002 by the 3rd Circuit Court, police in Pennsylvania acted on a six-month-old tip that a high school teacher was viewing illegal adult pornography on the Internet. They obtained a search warrant for the teacher's home and found child pornography on his computer's hard drive.

In an opinion written by Judge Maryanne Barry, another Clinton appointee, the 2-1 majority said the search warrant was invalid because the tip was "stale" and based on a dubious source. Also, they said, police had no probable cause to look for any kind of pornography, and investigators should not go on a fishing expedition through a suspect's hard drive just to find some sort of incriminating files.

Alito dissented. "The previously-noted incidents alleged in the affidavit showed that the defendant had a sexual interest in minors and that he had used sexual materials on several occasions as part of his course of conduct," he wrote. "All of this information tends to support a finding of probable cause."
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OK, did anyone have the nerve to actually read that case? Illegal adult pornography? I didn't know there was such a thing, and am left wondering how bad it has to be. I figure I'm better off not knowing some things, so I haven't read the case.

The case also makes me wonder just how naughty I have to be to have cops going through my hard drive. What "incidents showing sexual interest in minors?" What "sexual materials" in the course of what conduct? Yikes. Can we even have this discussion on TFL?

The majority (mmmm....led by a Clinton appointee...) said the information was stale and dubious. Like I said, I haven't got the nerve to read the case, but based on the cleaned up version of the story presented, it sounds to me like Alito wasn't unreasonably stomping on probable cause as a standard, he just reached a different conclusion on the facts.
 
I read the case in question. Interesting read about overreaching by law enforcement. You should read the case as there is nothing in there so shocking you would be morally contaminated by it. Offended maybe, but not contaminated.

Essentially, some 6 -10 months prior, the defendant was alleged to have shown ONE graduating high school senior ONE short internet video clip of acts between a woman and a horse. The circumstances surrounding this showing are not stated so we don't know why the video was played (could have been done in fun or as an exploration into seeing what could shock today's teens or for more purient reasons - we don't know as the allegations for that were not in the warrant).

This event was used as a basis for a warrant under which they searched EVERYTHING (including the silverware for forgery I suppose) and seized his computer. On the computer the DA supposedly found child porn. The defendant pleaded guilty to a reduced charge reserving his right to appeal the validity of the warrant and if invalid his plea would be reversed.

The appeals court said that the warrant was too vague in specificity and that the prob cause that the gov't used for the warrant was too old (stale) and that the items to be searched for and the places to be searched were overbroad since there had been no mention of child porn in the evidence prior to the warrant being sought. Since there had been no mention of CP, looking for it was outside the area where the evidence pointed.

I left out some facts which are not relevant to the issue of the warrant's legality and the sufficiency of the evidence needed for the Prob Cause. These facts are things like what his job was, etc. Some people may have a problem with his type of employment and the child porn allegation (remember it was only an allegation as he pleaded to a different and lesser charge) but that's an issue which makes no difference in whether the warrant was good enough or not.

As for the adult porn thing - Pornography is illegal. It is illegal to transport it, sell it, make it, etc. It is NOT illegal to posess it in your own home (with the exceoption of child porn which is illegal to posess). Thus, an allegation of pornography in some jurisdictions is sufficient to obtain a warrant to search for evidence of pornography and the interstate transport thereof. (This means that a subscription for those magazines you got stashed under the mattress could get your home searched in some jurisdictions).

The legality of adult porn is probably going to be questioned soon as the city of Los Angeles is now regulating the porn industry in an attempt to control the HIV issue that is prevalent in the industry. The issue will arise in that if a govt entity regulates an industry, how can it continue to be "illegal"? Also, there are laws in a lot of jurisdictions which regulate the locations where porn can be sold, how visible & accessible it can be to minors, etc. Again, if the gov't regulates the commercial sale of porn, how can it be illegal?

If porn is NOT illegal, then any warrant alleging the posession of porn contains no facts sufficient to justify a search for illegal items.

Alito apparently disagreed with that. Which may mean that he doesn't really understand the laws he is sworn to uphold. I dunno.
 
About the hotel surveillance case, WA, the one-party rule might be hornbook law in most states with regard to audio recording, but is it as clear-cut with other forms of surveillance?

I think the one-party rule should not be valid in cases where the audio or video reveals something that the "one party" (who consented to recording) wouldn't have heard or seen. That hasn't been much of a problem so far, because undercover audio and video recordings aren't generally hi-fi. Even with low-quality video, however, the different perspective of a hidden camera might reveal something that the informant couldn't see. Therefore, I don't think it should be admissible unless the police got a warrant first.

One-party consent for any type of surveillance could eventually result in grocery stores and other public establishments installing mm-wave radar. Anyone with guns or knives could be pointed out to LEOs, who then approach and either ask for your CHL or simply "investigate an investigation." At least with metal detectors you know what you're getting into before you get there.
 
Spiffy, I dunno what you're referring to specifically when you ask if "all" porn is illegal. However, "pornography" is more than nude pics. Simple nudity could be classed as "art" and would not be porn. Simulated sex could be in this area as well. Strip clubs & lap dancing?

However, any act done for "prurient reasons" IS pornography and is illegal. Fed law makes it a felony to engage in, ship, transport, cause to be transported, etc any pornography. The exact definition of pornography is not specific. It's one of those "you know it when you see it" sort of things which makes porn cases hard to prosecute. It's also why playboy, hustler, et al can publish and ship their mags. Is it porn or mere commercial speech? Is the acting in porn films art or are they made just for prurient interests?

It's a murky area where personal moral values figure into the final equation. However, under a strict fundamentalist and conservative approach, Playboy (one of the more softcore mags) would be classified as pornography because one of the possible uses for it would be for prurient reasons. Ashcroft had a problem in this area and that's one of the reasons he had the statues of Lady Justice covered with drapes. Those are partially nude sculptures cast in a traditional and historic pose holding the scales of justice. Again, porn or art?

There is one "evanlgelical" prosecutor in Los Angeles who is attempting to prosecute several porn industry moguls under the Fed Statutes. From what I can remember, the cases are still pending final disposition before trial and/or appeal so there's no determination on the porn legality issue yet. (but I could be wrong here - easy enough to check if someone were that interested. I'm not.)
 
A, the one-party rule might be hornbook law in most states with regard to audio recording, but is it as clear-cut with other forms of surveillance?
Click to expand...

Yes, IIRC.

WildifthereissomethingaboutitoyudontlikelegislateAlaska
 
rob....

As for the adult porn thing - Pornography is illegal. It is illegal to transport it, sell it, make it, etc. It is NOT illegal to posess it in your own home (with the exceoption of child porn which is illegal to posess). Thus, an allegation of pornography in some jurisdictions is sufficient to obtain a warrant to search for evidence of pornography and the interstate transport thereof. (This means that a subscription for those magazines you got stashed under the mattress could get your home searched in some jurisdictions).

The legality of adult porn is probably going to be questioned soon as the city of Los Angeles is now regulating the porn industry in an attempt to control the HIV issue that is prevalent in the industry. The issue will arise in that if a govt entity regulates an industry, how can it continue to be "illegal"? Also, there are laws in a lot of jurisdictions which regulate the locations where porn can be sold, how visible & accessible it can be to minors, etc. Again, if the gov't regulates the commercial sale of porn, how can it be illegal?

If porn is NOT illegal, then any warrant alleging the posession of porn contains no facts sufficient to justify a search for illegal items.
Click to expand...

i think the BATFE should be expanded to help regulate porn. where should the P go in their acronym? :D
 
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