Fox News Gives GOP Senator A Pass For Botching Constitutionality Of Gun Laws

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Fox News correspondent John Roberts ignored Sen. Ted Cruz's inaccurate claim that gun violence prevention is "unconstitutional" while guest hosting Fox News Sunday. The following morning on MSNBC's Morning Joe, host Joe Scarborough highlighted Roberts' failure to correct Cruz's extreme talking point, one that even conservative Supreme Court Justice Antonin Scalia rejected in District of Columbia v. Heller.

From the January 6 edition of Fox News Sunday (via Nexis):

ROBERTS: Gun control -- you probably heard the last segment. We're talking about 10 bills introduced in the House of Representatives regarding gun control. Joe Biden is leading a study group at the White House. You are a fierce defender of Second Amendment rights. You were in like 2010, given the NRA's Freedom Fund Award.

Is there any new gun control that you would accept?

CRUZ: The reason we are discussing this is it the tragedy in Newtown. And every parent, my wife and I, we've got two girls aged 4 and aged 2 -- every parent was horrified at what happened there. To see 20 children, six adults senselessly murdered, it takes your breath away.

But within minutes, we saw politician running out and trying to exploit this tragedy, try to push their political agenda of gun control.

I do not support their gun control agenda for two reasons. Number one, it's unconstitutional.

ROBERTS: But is there that you would accept?

CRUZ: I don't think the proposals being discussed now makes sense.

Cruz's repetition of the NRA talking point on Fox News Sunday that the "gun control agenda" is "unconstitutional" was especially notable because he is a well-credentialed attorney who clerked for former Supreme Court Justice William Rehnquist. The Supreme Court has repeatedly held that "gun control" is not unconstitutional, most recently in the landmark ruling of Heller that clarified the individual right to possess firearms. In fact, Cruz's endorsement of the NRA position is not only legally incorrect, it contradicts Justice Scalia's majority opinion:

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.


[N]othing 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. [United States v.] Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons.

Because Cruz, a new Republican member of the Senate Judiciary Committee, is expected to know very recent and high-profile Supreme Court precedent, Fox's Roberts should have given Cruz an opportunity to correct himself on the constitutionality of "gun control." As explained by The New York Times in reference to the reports of the gun violence prevention task force recommendations that Cruz was commenting on,  "[a]lthough the N.R.A. is sure to cry "Second Amendment!," the truth is that there's not a single Second-Amendment restriction in Mr. Biden's law-enforcement approved list."

Instead, that task fell to Scarborough and fellow Morning Joe regulars, who questioned how Cruz and Fox News Sunday could botch Heller without any explanation or follow-up:

SCARBOROUGH: Let me ask you a question, Mark Halperin. You know Ted Cruz, right? 


SCARBOROUGH: A smart, gifted guy? 

HALPERIN: He's a very smart man. 

SCARBOROUGH: Has he ever read the Constitution, do you know? 

HALPERIN: I'm certain that he has. 

SCARBOROUGH: Isn't he like a lawyer, or something like that? 

HALPERIN: He is, he's an esteemed lawyer, he was Solicitor General of Texas...

SCARBOROUGH: He's a Harvard Law graduate. So you think he's probably read a Supreme Court case before? 

HALPERIN:  I'm certain he has. 

SCARBOROUGH: You think maybe he's read Heller, the Supreme Court...

HALPERIN: Seminal... 

SCARBOROUGH: Seminal case on the Second Amendment, on the definition of what's constitutional and unconstitutional, you think he's read that? 

HALPERIN: Probably. 

SCARBOROUGH: It's hard to know, but you would think he probably would, right? Because if he had...

HALPERIN: He would know? 

SCARBOROUGH: He would not say that background checks are unconstitutional. Or any of the things that have been brought up are unconstitutional. Because the Supreme Court clearly and unequivocally said that Americans have a right to keep and bear arms, and that means keeping handguns in their home. That means being able to protect their families in their home. But they gave wide latitude to the government to regulate guns in every way that people determine.

I disagree with a lot of [Sen.] Dianne Feinstein's suggestions and recommendations, but background checks, the banning of military-style assault weapons, the banning of high-capacity magazine clips, it's all constitutional under Heller. It's not even a close call.

Posted In
Government, The Senate, Justice & Civil Liberties, Guns
John Roberts
FOX News Sunday
Courts Matter
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