I’ve seen a lot of people and websites commenting on the exchange between Sen. Ted Cruz and Sen. Dianne Feinstein about the 2nd Amendment and gun control last week during a committee hearing. Most of those people seem to think that Feinstein won the argument, but frankly I think it was a draw. Cruz’ question was badly reasoned and Feinstein’s answer was as well.
Cruz’ question was very weakly framed and almost certainly hypocritical. He starts off fine, pointing out, quite correctly, that when the phrase “the right of the people” is used in the Bill of Rights, it refers to an individual right rather than a collective one. Absolutely correct. As it is used in the 1st and 4th Amendments, it clearly refers to an individual right that may not be infringed by government. But then he leaves rationality behind when he tries to make an analogy between possible infringements on the 1st and 4th Amendments.
Would Feinstein think it’s constitutional if they were to pass a law that says the 1st Amendment applies to all books except a particular set that Congress deems are not covered, he asks as though it were some kind of stumper, but Feinstein misses the obvious response because she’s too busy making an emotional argument about seeing kids ripped apart by bullets. The answer, of course, is yes, that might well be constitutional. Not automatically, of course, but even when the Constitution says that the right of free speech may not be abridged, that does not mean that we can have no limits at all on speech. Cruz knows this, of course; he is, after all, a Harvard Law graduate.
And just as there can be narrowly drawn limits and exceptions on the 1st Amendment, even if one were to grant him that the 2nd Amendment confers an individual right to bear arms, there can also be narrowly drawn limits and exceptions to the 4th Amendment. That doesn’t mean that any proposed limit is going to be constitutional, of course. The standard for determining when a limit on an enumerated right is constitutional or not is usually the strict scrutiny test, where the government has to show that the limitation passed on the exercise of that right is the least restrictive means of achieving a compelling state interest. But Cruz is absolutely wrong to argue that if a “right of the people” is enumerated, whether free speech, free exercise of religion or the right to keep and bear arms, then there can be no limits whatsoever.
That’s the good, thoughtful answer to his question that Feinstein should have given, but she chose instead to get offended by the question and make a bunch of emotional arguments that had no bearing on the question he asked. That’s why it’s a draw. Badly reasoned question, badly reasoned answer — and a missed opportunity to educate the public on what the Constitution actually means.
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