The newly minted tea party senator from Texas, Ted Cruz, thinks he’s a smarty pants, who knows constitution better than everyone else. He seems unaware that he is spouting a radical interpretation of the Second Amendment that even Justice Antonin Scalia would find fantastical. And on Thursday, Senator Diane Feinstein, who has served on the Judiciary Committee for more than two decades, bested him both emotionally and intellectually. She is not California’s most popular politician for nothing.
Feinstein was testifying before her own committee in support of the new Assault Weapons Ban that she authored.
In the most condescending and obnoxious tone one can imagine, Cruz asked Feinstein a series of hypothetical questions about the Bill of Rights – the aim of which was to demonstrate the absolutism of the Second Amendment.
Cruz asked of Feinstein:
- “[W]ould she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights?” and
- “Likewise, would she think that the Fourth Amendment’s protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?”
These are what lawyers would call incomplete hypotheticals. If one book, for instance, were Dick Cheney's autobiography, and the other featured images of underage children engaged in sexual activity, then, well, yes, the constitution could, and would, draw distinctions. If one is crossing the boarder, one's expectation of privacy is different than if one is sitting quietly in one's home.
In posing his ridiculous hypotheticals -- as though a gun has the same status under the Bill of Rights as a person or a great work of literature -- Cruz seemed wholly unaware that even the First and Fourth Amendments are not absolute. Indeed, some speech – namely, fighting words, threats of imminent violence, obscenity and, notably, kiddy porn – garner no constitutional protection at all and may be banned outright. Commercial speech only gets intermediate constitutional scrutiny. And even political speech – normally the most sacrosanct in the First Amendment pantheon deserving of the highest protection – is subject to reasonable time, place and manner restrictions that are content neutral.
Or as Justice Oliver Wendell Holmes, Jr. put it, “free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
The text of the Fourth Amendment has its own self-contained exceptions: reasonable searches and seizures based upon a probable cause warrant – expanded by the High Court to include warrantless searches made in “hot pursuit,” “stop-and-frisk” and other exigent circumstances.
If the rest of the Bill of Rights is subject to reasonable limitations, how can Cruz possibly think that the Second Amendment stands alone as inviolable?
The answer is that he’s not thinking – and not reading, say, what Justice Scalia has said on the subject. Scalia wrote the majority opinion in District of Columbia v. Heller, which focused only on the second half of the Second Amendment to find an individual right to keep and bear arms for home protection.
Now leave aside the inconvenient fact that Scalia, and Cruz, ignore the prefatory clause in the amendment that conditions gun rights on what is “necessary” to maintain “[a] well regulated Militia.”
The significance of Scalia’s holding in Heller is that the most conservative intellect on the High Court plainly recognizes that the Second Amendment does not invalidate all gun safety legislation. His ruling was limited to overruling one particular law of the District of Columbia that imposed an “absolute prohibition of handguns held and used for self-defense in the home.”
Writing for the Court’s majority, Scalia concluded:
“We are aware of the problem of handgun violence in this country. . . . The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . . .”
Indeed, as an “originalist” who interprets the Constitution in light of the intent of the Framers, Scalia noted that the Second Amendment only extends to the type of guns “in common use” around in the revolutionary period – which would include muskets but not likely high capacity automatic weapons. Scalia wrote explicitly that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
Moreover, the Supreme Court never invalidated any part of the original 1984 Assault Weapons Ban, and there is nothing in the Heller decision that would dictate a renewed ban would be constitutionally suspect.
But Senator Feinstein gave a more visceral response to Cruz’s sophomoric questioning, telling him, “I’m not a sixth grader,” and pushing back with reference to her first-hand experience in the slayings of San Francisco Mayor George Moscone and Harvey Milk,
“Senator, I've been on this committee for 20 years. I was a mayor for nine years. I walked in, I saw people shot. I've looked at bodies that have been shot with these weapons. I've seen the bullets that implode. In Sandy Hook, youngsters were dismembered. Look, there are other weapons. . . .
I'm not a lawyer, but after 20 years I've been up close and personal to the Constitution. I have great respect for it. This doesn't mean that weapons of war and the Heller decision clearly points out three exceptions, two of which are pertinent here. . . . [I]t's fine you want to lecture me on the Constitution. I appreciate it. Just know I've been here for a long time. I've passed on a number of bills. I've studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture."
As Senator Feinstein concluded by noting that her proposed legislation specifically exempts 2,271 weapons by make and model. "Is this not enough for the people in the United States?" she asked. "Do they need a bazooka?"
Neither the Second Amendment nor common sense dictates that they do, and the freshmen senator from Texas should know it.