Right-Wing Media Trumpet Cruz's Flawed Constitutional Argument Against Assault Weapons Ban
Blog ››› ››› TIMOTHY JOHNSON
Conservatives in media are hyping the argument of Sen. Ted Cruz (R-TX) that a ban on assault weapons would be similar to the government deciding which books people are allowed to read, even though Cruz's argument is based on a misunderstanding of constitutional law and courts have held that assault weapon bans are constitutional.
During a March 14 meeting of the Senate Judiciary Committee, where a party line vote advanced an assault weapons ban proposed by Sen. Dianne Feinstein (D-CA) to the floor of the Senate, Cruz drew an equivalence between banning assault weapons and an act of Congress "to specify that the First Amendment shall apply only to the following books" or a law stating that the Fourth Amendment "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":
CRUZ: It seems to me that all of us should be begin as our foundational document with the Constitution. And the Second Amendment in the Bill of Rights provides that "the right of the people to keep and bear arms shall not be infringed." The term "the right of the people," when the framers included it in the Bill of Rights they used it as a term of art. That same phrase "the right of the people" is found in the First Amendment, the right of the people to peaceably assemble and to petition their government for readdress of grievances, it's also found in the Fourth Amendment, "the right of the people to be free from unreasonable searches and seizures." And the question that I would pose to the senior senator from California is, 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. 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?
Cruz's comments were promoted by Fox Nation, The Blaze, Red State, Breitbart.com, PJ Media, The Daily Caller and The Gateway Pundit. Breitbart.com wrote that Cruz "destroys" Feinstein's argument for an assault weapons ban. Red State ran a headline that Feinstein was struck by a "Ted Cruz Missile." The Daily Caller titled its article on Cruz's comments, "Ted Cruz offends Dianne Feinstein by bringing up the Constitution."
The praised heaped upon Cruz by conservative media outlets ignores that the junior Texas senator's constitutional argument is flawed because it fails to acknowledge longstanding and widely accepted limitations on all of the liberties guaranteed by the U.S. Constitution.
Both amendments cited by Cruz, the First and the Fourth, have numerous exemptions. A report by the Congressional Research Service laid out a number of First Amendment exceptions deemed constitutional by the Supreme Court including limitations or restrictions on obscenity, child pornography, commercial speech, and speech intended to incite imminent violence. Similarly, the Fourth Amendment limits the right against "unreasonable searches and seizures" in cases of emergency.
During the committee meeting, Sens. Charles Schumer (D-NY) and Sheldon Whitehouse (D-RI) pointed out deficiencies in Cruz's argument. As reported by ThinkProgress, Schumer noted that "you can't falsely scream fire in a crowded theater" and concluded, "There are reasonable limits on each amendment, and I think it is anomalous, to put it kindly, for either side to interpret one amendment so expansively and another amendment so narrowly that it just doesn't add up because your interpretation of the Constitution should be consistent." Whitehouse took this point further, stating, "It is hard to imagine that it would be a violation of the First Amendment for somebody to yell fire in a crowded theater but it's not a violation of the Second Amendment to prevent somebody from bringing a hundred-round magazine into a crowded theater in a Aurora, Colorado."
As Feinstein noted in her response to Cruz, the 2008 District of Columbia v. Heller decision authored by conservatives on the Supreme Court explicitly spelled out limitations on the Second Amendment. While Heller held that the Second Amendment confers an individual to possess a handgun in the home for the purpose of self-defense, Justice Antonin Scalia, writing for the majority, also wrote that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited" and that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose":
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.
We also recognize another important limitation on the right to keep and carry arms. [The Supreme Court case United States v.] Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [emphasis added]
There is strong legal precedent to support the notion that the specific assault weapons ban proposal is constitutional. In 2011, the United States Court of Appeals for the District of Columbia Circuit ruled on a post-Heller challenge to the District of Columbia's assault weapons ban. Noting that bans on assault weapons do not necessarily even implicate the Second Amendment right, the court held that even if such bans do, they are permissible because the government can prove a "substantial relationship" between the ban and "interests in protecting police officers and controlling crime." The court also cited language from Heller approving the prohibition on civilian access to the military's M-16 rifle, noting that it is "difficult to draw meaningful distinctions" between assault weapons "and the M-16."
Legal experts have also backed the constitutionality of an assault weapons ban. In testimony before the Senate Judiciary Committee on February 12, Harvard law professor Laurence Tribe, a preeminent constitutional scholar, stated, "Application of Heller's three threshold factors -- dangerousness, commonness of use, and connection to core self-defense interests -- demonstrates that the Second Amendment does not provide legal shelter to the features that trigger a firearm's prohibition under the [assault weapons] ban."
On January 30, over 50 constitutional law professors, including Tribe, published an open letter citing the appeals court decision upholding D.C.'s ban as evidence of the permissibility assault weapons bans. According to the professors, bans on assault weapons do not implicate the "core" Second Amendment right and therefore are subject to "reasonable regulations":
The court of appeals recognized such weapons and magazines are not necessary for individual self-defense -- what Heller called the "core lawful purpose" of the Second Amendment. Restrictions on high-capacity magazines and assault weapons, the court of appeals held, do "not effectively disarm individuals or substantially affect their ability to defend themselves." The Second Amendment, like the First Amendment, does not prevent lawmakers from enacting reasonable regulations that do not seriously interfere with the core right guaranteed by the Constitution.