Sens. Ted Cruz and Dianne Feinstein face off on gun control

By Jon Healey

March 15, 2013 12 AM PT

Freshman Sen. Ted Cruz (R-Texas), a tea party darling, evidently is so proud of his exchange with Sen. Dianne Feinstein (D-Calif.) during the Senate Judiciary Committee’s session Thursday, he posted a video of it on YouTube. At issue was the constitutionality of S 150, Feinstein’s proposal to ban semiautomatic assault weapons and large-capacity magazines.

As political theatrics go, it’s pretty good: Cruz did that old courtroom-lawyer trick of asking a loaded question based on a false analogy and then challenging Feinstein to answer it. And he achieved the intended result: She came across as flustered and evasive, when she needed to point out how wrong Cruz’s premise was. In fact, Cruz’s query helps illustrate why Feinstein’s approach is consistent with the Bill of Rights.

He was pointing a gun at his own foot. Too bad Feinstein couldn’t reach the trigger.

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Cruz starts off by saying the bill includes a 100-page list of firearms that Congress would deem prohibited. It doesn’t, as Feinstein points out later. The bill would impose a general ban on firearms that meet its definition of a semiautomatic assault weapon; the list comprises the weapons that would be exempt from the ban. But that’s just a quibble, and judging from what Cruz goes on to ask, he probably meant to say “legal,” not “prohibited.”

After lecturing the committee about the meaning of the phrase “the right of the people” -- as in, the 1st Amendment right of the people peaceably to assemble and petition their government, the 2nd Amendment right to keep and bear arms, and the 4th Amendment right to be secure against unreasonable searches and seizures -- he asks Feinstein this:

“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 2nd Amendment in the context of the 1st or 4th Amendment? Namely, would she consider it constitutional for Congress to specify that the 1st Amendment shall apply only to the following books, and shall not apply to the books that Congress has deemed outside the Bill of Rights? Likewise, would she think that the 4th Amendment’s protection against seaches 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?”

That’s very clever, and I suppose one response would be to remove the list of 2,271 exempted rifles and shotguns. That wouldn’t change the bill’s effect at all; instead, it would simply lead to more uncertainty about what it covered. But the better answer is that every “right of the people” has been interpreted by the courts to be limited when one individual’s exercise thereof tramples the rights of another individual.

There is no 1st Amendment right to assemble in a public hospital’s emergency room to protest healthcare cuts. There is no 1st Amendment right to petition the government by deliberately flooding a federal website with enough traffic to bring the site down. There is no 4th Amendment right to stop police from searching the trunk of your car when there’s blood dripping out of it onto the street. And there’s no 2nd Amendment right to own a bazooka.

As to Cruz’s specific points, the bill doesn’t exempt only the firearms on the list; it exempts any that don’t meet the bill’s description of “semiautomatic assault weapon.” In other words, Congress isn’t saying “Here are the models of firearm you can own,” just as it doesn’t say, “Here are the titles you can read.” Instead, the government has outlawed classes of material -- e.g., child pornography -- and communities have the power to ban particular books they find obscene.

Oh, and by the way, the government does have the power to require certain individuals to submit to searches and seizures under circumstances that would ordinarily be considered unreasonable. For example, the Supreme Court has ruled that parolees can be stopped and search even if they’ve not done anything suspicious.

Richard Feldman of the Independent Firearm Owners Assn. is much more effective at critiquing Feinstein’s proposal, for example by focusing on how vague the definition of banned weapons is. But it’s silly to argue, as Cruz seems to do, that Congress doesn’t have the power to place any limits on the type of weapons people can keep and bear.

Feinstein’s own response seems hampered by her irritation with Cruz and what she interpreted to be his condescension. “I’m not a sixth-grader,” was her opening salvo, before playing the kids-killed-in-Sandy-Hook card. The best retort came from Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), who said, “I appreciate that we have a discussion on books. I know that they have that in your state of Texas, where your education boards tell people what books they should or should not read in their schools, something we would not do in Vermont.... But let’s stick to guns.”

To which Cruz replied, “Mr. Chairman, I appreciate your acknowledging that the state of Texas allows books.” Here’s the video: