Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
During this week’s Senate Judiciary Committee hearing on proposed gun regulations, Texas Tea Party Senator Ted Cruz chose to disrespect long-serving Senator Dianne Feinstein with a completely inappropriate lecture on the Constitution.
Apparently, Senator Cruz took profound exception to the notion that the 2nd Amendment permits the assault weapons ban that Senator Feinstein is supporting via the legislation she has proposed, arguing that that the 1st Amendment does not permit the banning of certain books so why would the 2nd Amendment allow the banning of certain weapons?
In making his point, Cruz offered up the following question to Senator Feinstein—
“The question that I would pose to the senior senator from California is “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 Second Amendment in the context of the First or Fourth Amendments, namely: Would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights?”
Setting aside the fact that District of Columbia v. Heller, 554 U.S. 570 (2008) makes it crystal clear that there are, indeed, circumstances where it is constitutional to regulate guns, what is most remarkable is that Senator Cruz did, himself, make the case for regulating the very weapons Senator Feinstein seeks to ban in her proposed regulation.
Cruz offered that defense in the amicus curiae brief he prepared for the Supreme Court in the Heller case—a brief the Senator tells us makes him quite the expert on the subject of the 2nd Amendment.
Take a look at this short video clip of the Senator reminding us of his professed expertise based on his brief—
Senator Cruz now wishes to rely on the ruling in Heller—which adopts the test set forth in the United States v. Miller, 307 U. S. 174 protecting ownership of weapons “in common use”—by reasonably arguing that the 4 million assault weapons currently owned by Americans constitutes “common use”.
The problem is that he did not always see it this way. In fact, if his brief is to be relied upon, he didn’t see it this way as recently as 2008.
In the brief Cruz submitted to the Supreme Court, he argues that the Court could strike down the Washington DC gun ban without impacting on (declaring unconstitutional) the many state regulations prohibiting or limiting ownership of certain weapons. Cruz offered this position in opposition to an argument the government had put forth as a reason to uphold the ban. However, included among the state regulations Cruz lists in his brief as worthy of meeting constitutional scrutiny,were the gun regulations then in effect—and currently in effect—in the States of Connecticut, Massachusetts and New York which prohibit ownership of the very assault weapons that would be banned by the Feinstein legislation.
So, why the change of heart as to what can and cannot be regulated?
One explanation might be that the 4 million assault style weapons now in circulation meet the “in common use” test of Miller whereas, in 2008, there were not a sufficient number of assault weapons in circulation to meet the test. However, with the old federal assault weapons ban having expired in 2004, there were already millions of such weapons in circulation at the time then Texas Solicitor General Cruz filed his amicus curiae brief.
Another explanation might be that Mr. Cruz was acting as a lawyer in 2008 and, as such, was expressing the position in the manner most favorable to his client, the State of Texas. If this were the case, he might now be offering his own point of view, which could, conceivably, be slightly at odds with what he then perceived as the best position for his client.
This would be understandable—and certainly acceptable—were it not for the fact that Senator Cruz just last week joined with his fellow Senator Republicans in filibustering the appointment of Caitlin Halligan to serve as a judge on the DC Circuit Court.
The reason for blocking Halligan’s nomination?
People For The American Way does a great job laying out the potential irony of giving Cruz the benefit of the doubt for acting on behalf of a client only to block Ms. Halligan for doing precisely the same thing:
“Or perhaps the difference is that Senator Cruz is now speaking on his own behalf, while as Texas Solicitor General he was advocating a legal position on behalf of his client (the state of Texas). Such a claim would come just a week after Cruz joined other Republicans last week in filibustering Caitlin Halligan’s nomination to the DC Circuit on the basis of arguments she made on behalf of her clients, assuming that what an attorney argues in court on behalf of their client reflects their personal beliefs (emphasis added).”
While it would be great to hear from Senator Cruz why his perspective is so clearly different in 2013 than it was in 2008, he might wish to give some thought to his own shifting understanding of the 2nd Amendment before presuming to take Senator Feinstein, or anyone else, to task for what Cruz perceives as shortcomings in their own grasp of the law.
Contact Rick at thepolicypage@gmail.com and follow me on Twitter and Facebook