Nearly a decade ago, Judge Samuel Alito, Jr., asked whether “the Commerce Clause still imposes some meaningful limits on congressional power” or whether a then-new Supreme Court decision saying so was just “a constitutional freak?”  Fast forward nine years, and if he is confirmed as the 110th Justice of the Supreme Court of the United States, Alito may be giving the authoritative answer to his own question.

Luckily for those of us who lament the steady creep of the federal government into every aspect of our lives, Alito already knows his answer and it’s the right one.  Indeed, Alito understands not only that the Founding Fathers intended but also that the U.S. Constitution created a government of limited federal power.

Rewind those nine years again, and you’ll find the evidence of that in a dissent Alito issued from a decision in which two of his lower court colleagues upheld a federal law that made it crime simply to possess a machine gun.

Alito couldn’t understand their thinking.  Not only does the Constitution list what powers Congress “shall have” in Article I, Section 8, but the Founding Fathers were even so careful as to amend the document for a tenth time with the instruction that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

What’s more, the highest court in the land had just struck down a similar provision that made it a crime to possess any gun in a “school zone.”  And the Supreme Court had done so by announcing, “The Constitution creates a Federal Government of enumerated powers.”  In fact, Chief Rehnquist didn’t leave it at that, he went on to quote James Madison’s Federalist Paper No. 45, emphasizing “the powers delegated by the … Constitution to the federal government are few and defined,” while “[t]hose which are to remain in the State governments are numerous and indefinite.”

So how could Alito’s colleagues, bound by Supreme Court precedent and less than two years later, so easily sidestep the High Court’s decision striking down a law that Alito called the “closest extant relative” to the federal machine gun ban?  He had a ready answer -- they didn’t like guns, they didn’t like limited federal power, and, most importantly, they didn’t care about the constitutional details.

As is so often the case with constitutional law, the issue wasn’t whether the government could restrict machine guns, it was how that could be done.  As Alito made perfectly clear, a careful reading of the Constitution “would not preclude adequate regulation of the private possession of machine guns.”  After all, “the Commerce Clause does not prevent the states from regulating machine gun possession,” as each and every state in Alito’s Third Circuit already had done.  Moreover, there were several ways Congress could have saved the federal machine gun ban from exceeding the limits set by the Commerce Clause.

The law “would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element -- a common feature for federal laws” that requires an interstate element and “that has not posed any noticeable problems for federal law enforcement,” Alito explained.  The law “might also 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,” Alito continued.

But neither lawmakers nor the two other judges were interested.  The machine gun ban had already been published in the U.S. Code, and it was just too much trouble to go back and fix what they thought, at worst, amounted to nothing more than a constitutional typo.

It’s a problem that has long plagued constitutional decision making -- ignoring constitutional limits because of political ease and legislative or judicial expediency -- not to mention one that several current justices have raised to an art form.  But, as his machine gun dissent demonstrates, Alito has pledged his allegiance to what the Constitution really says and means.  So, if he is confirmed to the Supreme Court, there will be another justice gunning for limited government.