Commentary Magazine


Ted Cruz v. Dianne Feinstein

In a confrontation that has received a fair amount of attention, Republican Senator Ted Cruz pressed Democratic Senator Dianne Feinstein on her bill to reinstate a ban on assault weapons. Mr. Cruz argued that the starting point of the discussion should be the Constitution–and then pressed Ms. Feinstein on whether she would apply regulations to the First and Fourth Amendments (dealing with freedom of speech and the protection against unlawful search and seizure) similar to those she is seeking on the Second Amendment (the right to bear arms).

“The Second Amendment and the Bill of Rights provides that the right of the people to keep and bear arms shall not be infringed,” Cruz said–and then asked whether the First Amendment should “only apply” to certain books or the Fourth Amendment should only protect certain people from unreasonable searches. 

Senator Feinstein reacted sharply, saying, “I’m not a 6th grader. I’m not a lawyer, but after 20 years I’ve been up close and personal with the Constitution. I have great respect for it.” She later said she felt “patronized” by Senator Cruz, whom she called “arrogant.”

Let me take these claims in reverse order. Having watched Senator Cruz from a distance, I can see why people view him as arrogant. If I were a close adviser, I would tell him so directly and counsel him to keep that tendency in check. It’s not necessary, it can be off-putting and eventually get him into trouble.

That said, I don’t think Cruz’s questions were either inappropriate or patronizing. He was pressing Senator Feinstein in the hopes of trapping her into an inconsistent application of constitutional rights. The problem is she didn’t handle the question well from a substantive point of view–and it took Senator Dick Durbin to make the obvious rejoinder, which is that our constitutional rights are not absolute.

For example, people don’t have a right, in the name of the First Amendment, to libel people, to yell “fire” in a crowded theater, to incite people to violence, and to sell child pornography at a public library (or anywhere else, for that matter).

As for the issue of firearms, the question can easily be thrown back at Senator Cruz. Does he believe in an absolute right to bear any arms at any time for any reason? What about fully automatic weapons (which are heavily restricted)? How about a rocket-propelled grenade launcher? A bazooka? An M-1 tank? Would Senator Cruz draw the line at any of these? Of course he would, and he would be right to do so. And in doing so, he would answer his own question. He would be conceding that there is no absolute right to bear arms, just like there’s no absolute right when it comes to freedom of speech. Justice Antonin Scalia, a conservative icon, rightly pointed out in United States v. Heller that, like most rights, the Second Amendment right is not unlimited. It leaves room to regulate guns.

It seems to me, then, that the philosophical issue is pretty clear: in America we have a right, but not an absolute right, to bear arms. What we’re talking about is a prudential application of restrictions on guns. The debate is precisely where to draw the lines. What separates wise lawmakers from foolish ones is where and how you draw the lines.

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