Via Mediaite. If all you watched of yesterday’s Judiciary Committee hearing was the viral-video Cruz/Feinstein exchange, you might think Cruz had never heard of Heller. Didn’t Scalia specifically say in the majority opinion that some types of weapons could still be banned under the Second Amendment? And didn’t Cruz strongly imply the opposite in his question to Feinstein, suggesting that Congress can’t pick and choose certain types of weapons to ban? Why, clearly, Harvard Law grad Ted Cruz is willfully deceiving the public into thinking the Second Amendment is more absolute than the Supreme Court says it is. He’s acting like Heller never happened!
Like I say, that’s what you might think if you watched Cruz-versus-Feinstein and nothing more. If you watched the rest of the Judiciary Committee hearing, you know better. See, for example, the second clip below, from the very same hearing, in which Cruz specifically addresses the Heller case and the claim from gun-control advocates like Scarborough that Feinstein’s assault-weapons ban is okay under the Court’s reasoning. He’s not trying to mislead anyone about what the Court said. He’s arguing within the parameters of Heller itself. Here’s the relevant passage from Scalia’s majority opinion (citations omitted):
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues… Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”… We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”…
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
The question for the Court if a new assault-weapons ban ever passes will be whether, say, an AR-15 is a “dangerous and unusual weapon” that’s not “in common use.” That’s precisely the question Cruz is anticipating and answering in the second clip below. No, the AR-15 is not “unusual”; it’s one of many, many, many models of semiautomatic rifles out there, albeit a bit more customizable than most. No, it’s not especially “dangerous.” If you’re worried about mass shootings, you have at least as much to fear from a lunatic wielding a light, easily concealed standard semiautomatic pistol than someone lugging around an AR-15. Yes, it’s “in common use.” Boy, is it ever. Anything can happen if/when the Court takes this question up, especially if Obama gets to replace one of the conservative justices with a liberal, but it’s easy to imagine the assault-weapons ban failing on Heller’s own terms. You don’t have a right to own a bazooka (dangerous! unusual! not in common use!), but the most popular semiautomatic rifle in America?
As an antidote to Scarborough, read Jay Nordlinger’s short but trenchant post at the Corner about Feinstein’s approach to the constitutionality of laws. Why should Congress restrain itself? That’s what Supreme Courts are for, right?