Ted Cruz is wrong about the Constitution

Ted Cruz, national Tea Party darling, got it wrong on the Constitution.

The now-infamous Senate hearing exchange between Senators Cruz and Dianne Feinstein over guns is attracting a lot of attention for her stern dressing down of the Texas Republican. But since Cruz is emerging as a national spokesman for the Tea Party and the far right wing of the GOP — the exchange has drawn widespread attention on the right — the views he expressed about our founding document are worth a look. Here’s what Cruz said:

“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 Amendment? 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?

“Likewise, would she think that the Fourth Amendment’s protection against searches 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?”

Implicit in this line of questioning is the suggestion that the assault weapons ban is unconstitutional. However, the majority opinion in the Supreme Court case conservatives love to cite — District of Columbia versus Heller, which struck down D.C.’s firearms ban — actually created a framework that permits the regulation of firearms, but not an outright across the board ban of all ordinary handguns. As David Cole, a constitutional law professor at Georgetown University put it to me: “The court in Heller says that on the one hand, there is an individual right to bear arms, but on the other hand, that right is subject to reasonable regulations.”

Opponents of the assault ban can legitimately ask whether Congress’ authority to regulate guns, as articulated in Heller, extends to the banning of certain types of assault weapons. But while Heller affirmed the Constitutional right to self defense with a gun, it also confirmed that there is no absolute unregulated right to bear arms, Cole notes.

This, however, isn’t really the most interesting thing about what Cruz said. The truly wrongheaded aspects of his remarks concern his assertions about the First and Fourth Amendments — which embody a simplistic view of the Bill of Rights.

Cruz asks whether it would be Constitutional for Congress to deem certain books outside the protection of the Bill of Rights. But the Supreme Court has upheld bans on certain forms of speech. Susan Low Bloch, also a Georgetown University constitutional law professor, points me to New York v. Ferber, in which the Supreme Court upheld the constitutionality of a state law banning child pornography. There’s also Miller v. California, which held that obscenity is not protected by the First Amendment.

Now, in fairness, in neither of those cases did Congress “deem” any speech outside the protection of the Bill of Rights, as per Cruz’s questions. But in both, the Court determined that there are forms of speech that are not protected by the First Amendment guarantee of free speech. More to the point, Cruz’s whole line of questioning about Congress deeming this or that outside the First and Fourth Amendment protections is predicated on a subtle but important distortion. It isn’t Congress that deems something outside the protection of the Constitution, even when it legislates against it. Rather, Congress legislates certain behavior to be unlawful. The courts determine what is and isn’t protected by the Constitution.

In other words, Cruz is subtly misrepresenting the argument over gun control and the Bill of Rights. In the case of the assault weapons ban, Congress is trying to legislate within the framework the Supreme Court has dictated about what is and isn’t protected by the Bill of Rights. The Supreme Court has stated that there is no absolute, unlimited right to gun ownership, and Congress is trying to regulate accordingly to solve a pressing public problem.

“Congress is trying to implement the Supreme Court’s interpretation,” Professor Bloch says. “Congress is not carving out things the Constitution doesn’t protect.”

In a sense, Cruz’s questions seem to presuppose that the Bill of Rights is absolute, and that any laws regulating any behavior relating to them inherently violate those rights. “Rights are all subject to some restrictions and are applied differently,” Cole says. “The same with the Fourth Amendment. The courts have held that with respect to people out on parole or probation, the state doesn’t have to have either probable cause or reasonable suspicion. It can search those people at will. The courts have said some kinds of investigations don’t count as searches and are not restricted by the Fourth Amendment.”

In other words, the courts have held that the First, Second, and Fourth Amendment don’t preclude regulation in these areas. Or, as Cole puts it: “Rights are not absolute.”

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UPDATE: Post edited slightly for accuracy.

UPDATE II: In fairness to Senator Cruz, elsewhere in the hearing, he addressed the fact that Heller does allow for some regulation of guns, i.e., prohibitions on “dangerous and unusual” weapons, but said laws banning guns “in common use,” such as many forms of assault weapons, are unconstitutional. That said, Cruz’s discussion of the First and Fourth Amendments — the really problematic part of his remarks — remains wrongheaded, in my view. By citing a hypothetical in which Congress “deemed” certain people unprotected by those rights, he seems to be proceeding from the assumption that certain types of regulations in these areas are inherently a violation of those rights — when in fact this is something that is established by the courts — and in the process suggesting that those rights are absolute. That’s what the two Constitutional experts above find problematic about his comments.

Greg Sargent writes The Plum Line blog, a reported opinion blog with a liberal slant -- what you might call “opinionated reporting” from the left.
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