When Sen. Cruz, (R-TX), questioned Sen. Feinstein, (D-Calif.) about the constitutional basis for her gun control bill, he clearly got under Sen. Feinstein's skin. She responded to Sen. Cruz's question, saying that "I'm not a sixth grader." Here are the questions Sen. Cruz asked of Sen. Feinstein:
Would she think that the Fourth Amendment protections against unreasonable searches and seizures only apply to the following specified individuals and not to the individuals Congress deemed outside the protection of the Bill of Rights?
Like all smart litigators, there was a method to Sen. Cruz's madness. During his interview with Hannity, he explained his logic behind his question:
If you look at the text of the Constitution, and I always think that the text of the Constitution should be the starting point, the Second Amendment provides that "the right of the people to keep and bear arms shall not be abridged." The point I made in my question is that language "the right of the people" is a term of art that the framers of the Constitution used in other parts of the Constitution. They used it in the First Amendment. "The right of the people to peaceably assemble, to petition their government for redress of their grievances." They used it in the Fourth Amendment protecting the right of the people to be free from unreasonable searches and siezures.
The entire premise that the assault weapons ban that the Senate Judiciary Committee just passed is that Congress can specify which firearms are ok and which firearms American citizens don't have the right to use.
This is exceptionally straightforward. In the Supreme Court's ruling in Heller,they said “No, if they’re in common use for self defense, they cannot be banned consistent with the Second Amendment.”
That's why, in 2008, the Surpreme Court ruled against Washington, DC's ban on handguns. Their thinking was that handguns were in common use for self defense, therefore they couldn't be banned "consistent with the Second Amendment."
Sen. Cruz's point that Congress didn't have the authority to limit the people's rights as listed in the Second Amendment is similar to their not having the authority to limit what speech is allowed and which isn't or which people are protected by the Fourth Amendment against unreasonable searches or seizures.
To limit the scope of any of the constitutional amendments requires passing a different constitutional amendment and repealing the existing constitutional amendment.
The basic premise is that laws are judged by the Constitution. The Constitution isn't judged by the laws Congress passes.
Sen. Feinstein is right that she's been in DC a long time. Based on her willingness to ignore basic constitutional principles, it's apparent she's been there far too long.
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