The more I think about yesterday’s dust-up between Sens. Ted Cruz and Dianne Feinstein (see HERE), the more I am amazed at the Texas Republican’s ignorance of constitutional law.
During a committee hearing on a gun-control proposal, Cruz clearly implied that the rights afforded by the First, Second and Fourth amendments to the Constitution are absolute and unlimited.
He said to Feinstein:
I pose to the senator from California, would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would 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?
Let’s unpack this nonsense piece by piece:
Are there limits to First Amendment rights? Of course there are — starting, for example, with the cliche that Freedom of Speech doesn’t give you the right to shout “Fire!” in a crowded theater.
And as for Cruz’s reference to books, the fact is that it’s constitutionally legitimate to ban certain sorts of tomes. I don’t suppose that Senator Ted possesses any child pornography, but if he did, he could be busted — and his broad interpretation of the First Amendment would be of no avail.
Moving on to the Fourth Amendment, if Cruz thinks there are no exceptions to the constitutional safeguard against warrantless searches and seizures, he’s mistaken. The Supreme Court has declared more exceptions than I care to enumerate here.
OK, now let’s focus on Cruz’s principal point of concern, the Second Amendment. His comment to Feinstein was fraught with the implication that there are no limits to the right to keep and bear arms. But the Supreme Court has never — ever — accorded the Second Amendment such an absolute interpretation.
As Justice Antonin Scalia, the most conservative member of the high court, wrote in the celebrated Heller case of 2008:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [United States v.] Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
In retrospect, what Cruz said to Feinstein seems to have been calculated more to curry favor with his party’s far-right elements than to distinguish himself as a serious student of the Constitution.
As such, it didn’t speak well of the education he got at Harvard Law School.