Thursday, March 14, 2013

Cruz vs. Feinstein on Gun Control: A Better Answer to Cruz

The exchange between Senators Ted Cruz (R-TX) and Dianne Feinstein (D-CA) about the constitutionality of gun control has been getting a lot of coverage today.  Cruz asked Feinstein how, given the Federal authority to outlaw certain weapons as provided for in her bill, and the violation of the Second Amendment which he saw that entailing, would she feel about a law that outlawed certain books, and the violation of the First Amendment that such a ban would entail?

Feinstein told Cruz not to lecture her on the Constitution, Cruz said he respected her passion, and there has been a lot of commentary in the media about how well Feinstein stood up to Cruz's questions.  Be that as it may, there was no constitutional answer given to Cruz, so here's one now:

First, here are the texts of the First and Second Amendments:
  • First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  • Second Amendment: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Cruz in his exchange with Feinstein pointed out that "the right of the people" is used in both Amendments - true - and that restrictions or control of guns (or arms) under the Second Amendment therefore should be no more allowable than restrictions of books under the First Amendment, because in both cases "the right of the people" would be infringed.   Not true.

Here's why:  the First Amendment associates "the right of people" to "peaceably" assemble and petition the government.  But before that, and before the phrase about "abridging the freedom of speech, or of the press," the First Amendment reserves the phrase, "Congress shall make no law" - a phrase that appears nowhere in the Second Amendment.

Had the Founders wanted the Federal government to make "no law" regarding possession of weapons or arms, they easily could have used that phrase in the Second Amendment.  Instead, they used the far weaker "shall not be infringed," which obviously leaves lots of room for reasonable laws that do not infringe.

And that, obviously, was a very smart distinction, because guns can kill and cause physical harm, but the worst that words can do is anger and aggravate.  The Founders had it right, and Cruz has it wrong.

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