In the 2000 case of C.H. v. Oliva, the 3rd Circuit ducked deciding on its merits whether a New Jersey elementary school unconstitutionally discriminated against the religious expression of a kindergarten student who brought in a poster of Jesus when his teacher asked students to bring in something for which they were thankful. In dissent, Alito said the court should have ruled for the student on the merits.
“School authorities are not permitted to discriminate against student expression simply because of its religious character. … Taking down Zachary’s Thanksgiving poster and replacing it in a less conspicuous location because of its religious content was plainly viewpoint, not subject matter, discrimination. The subject matter of the poster was specified by Zachary’s teacher: something for which he was thankful as the Thanksgiving holiday approached. His poster fell within the specified subject matter, and it is not alleged that the poster was subjected to discriminatory treatment because of that subject. Rather, the poster was allegedly given discriminatory treatment because of the viewpoint that it expressed, because it expressed thanks for Jesus, rather than for some secular thing. This was quintessential viewpoint discrimination, and it was proscribed by the 1st Amendment …
In the 1996 case of U.S. v. Rybar, Alito argued in dissent that the Commerce Clause as interpreted by the Rehnquist Court in U.S. v. Lopez did not authorize Congress to regulate the purely intrastate possession of a machine gun.
“Was the United States v. Lopez a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power? …The activity 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? Is the possession of a firearm within a school zone somehow less ‘economic’ or ‘commercial’ than possession elsewhere—say , on one’s own property? If there are distinctions of constitutional dimension here, they are too subtle for me to grasp.”
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