Mar 15, 2013

Posted in Constitutionality of Social Cost, Equal Protection for 2nd Amendment

Ted Cruz on the Equality of Rights

For some time, I have written that the Second Amendment has been treated differently than other provisions of our Bill of Rights (see my article in the Harvard JLPP). On Thursday, during a hearing before the Senate Judiciary Committee, Senator Ted Cruz posted a question to Senator Feinstein. He began by noting that the phrase “the people” in the Second Amendment also appears in the First and Fourth Amendments. (As a youngster, Ted memorized the entire Constitution word for word).

He then asked about whether it would be appropriate to treat the First and Fourth Amendments as the Congress would the Second Amendment.

I pose to the senator from California [Sen. Diane Feinstein], 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?

Ted Cruz’s example is not fanciful. Lest we forget that during the first time Citizens United was argued, the Deputy Solicitor actually said that Congress could ban specific books! He said it. Fortunately Solicitor General Kagan walked that line back, but it’s clear that many in the government would assert this power. Also, no doubt many in the Congress have no problem with disrespecting the Fourth Amendment (hello reauthorization of the Patriot Act by bipartisan majorities).

But, let’s assume Congress really cared about the First and Fourth Amendments.

Here is Feinstein’s response to Cruz:

“Let me just make a couple of points in response,” Feinstein shot back at a Senate Judiciary Committee hearing. “One, I’m not a sixth grader. Senator, I’ve been on this committee for 20 years. I was a mayor for nine years. I walked in, I saw people shot. I’ve looked at bodies that have been shot with these weapons. I’ve seen the bullets that implode. In Sandy Hook, youngsters were dismembered. Look, there are other weapons. I’ve been up — I’m not a lawyer, but after 20 years I’ve been up close and personal to the Constitution. I have great respect for it. This doesn’t mean that weapons of war and the Heller decision clearly points out three exceptions, two of which are pertinent here.”

Feinstein continued: “It’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture. … I come from a different place than you do. I respect your views. I ask you to respect my views.”

Feinstein irate response (which reflects a serious intellectual insecurity) dodges Cruz’s question.

Think Progress claims Senator Schumer’s response “obliterates” Cruz, but I think it reflects a disconnect about what the nature of the right being limited is:

In reference to the question my colleague from Texas asked, would you limit books? Would you name specific books? Yeah. It’s constitutional within the ambit of the First Amendment to eliminate child pornography. And we have lots of laws that are very explicit about that. Very explicit. That are constitutional, that have been upheld as constitutional. Similarly, you can’t falsely scream fire in a crowded theater. Similarly, we have libel laws. Every one of these is an impingement on the sacred First Amendment, upheld as constitutional. There are reasonable limits on each amendment, and I think it is anomalous, to put it kindly, for either side to interpret one amendment so expansively and another amendment so narrowly that it just doesn’t add up because your interpretation of the Constitution should be consistent.

Of course rights can be limited. Of course child pornography has been banned, notwithstanding the First Amendment. Libel laws are a weaker example, as the actual malice standard for public officials (created out of whole cloth by the Supreme Court) is very difficult to satisfy. Of course there are reasonable limits on each Amendment. Rights can be limited in proportion to what I have called their social cost. Most of the limitations imposed by the assault weapon ban are beyond arbitrary. Most are based on mere cosmetics. I went shooting last week during my trip to California, and I became very familiar with the inanity of the California assault weapon ban, that does nothing more than make it annoying to load magazines.

In any event. I don’t think Cruz was arguing that the Second Amendment should be considered more “expansively” than others. I think Cruz was arguing that interpretation of the Amendments, to use Schumer’s word “should be consistent.” I would be thrilled to see this consistency. Alas, even under Heller, the Second Amendment remains something of an oddball out, due in part to the “longstanding prohibitions” and “common use” provisions, that really have no basis in the Amendment.

Senator Whitehouse’s response is even further askance:

It is hard to imagine that it would be a violation of the First Amendment for somebody to yell fire in a crowded theater but it’s not a violation of the Second Amendment to prevent somebody from bringing a hundred-round magazine into a crowded theater in a Aurora, Colorado.

This is the Oliver Wendell Holmes/James Holmes juxtaposition. People far too often conflate the right to carry a weapon with the right to use that weapon to kill a lot of people. Of course there is no right to kill innocent people. That is ludicrous. Yelling in a crowded theater is doing something bad (Oliver Wendell Holmes continues to haunt us). Merely carrying a concealed weapon is not. And, for what its worth, when James Holmes was selecting theaters in Aurora, he focused on those that did not allow firearms inside, to ensure he would be the only armed person in a theater. People who want to shoot up movie theaters tend not to be deterred by gun laws.

Update: More from Jacob Sullum:

Respecting Feinstein’s views is a tall order, given the disjointed, utterly illogical way in which she defends them. Much of her response was not a response at all; it merely reiterated Cruz’s point that her bill prohibits (yes,prohibits) certain guns while exempting others. His question was why that approach is acceptable in the Second Amendment context when it wouldn’t be in legislation impinging on First Amendment rights. As for explaining the distinction between prohibited and permitted weapons, Feinstein simply repeated the long-running lie that there are functionally important differences between the two categories, when in fact her criteria are mainly cosmetic, having little or nothing to do with a gun’s usefulness to a mass murderer or ordinary criminal. She also falsely asserted that semiautomatic “assault weapons” are the same as the machine guns carried by soldiers and even suggested they are akin to bazookas.

It is not clear what “three exceptions” Feinstein had in mind when she referred to District of Columbia v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to arms. Writing for the majority, Justice Antonin Scalia did say that “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.” Those are three things, but Feinstein’s bill has nothing to do with any of them. Scalia also mentioned “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'” But so-called assault weapons, which are among the most popular rifles in America, are not unusual, and Feinstein has never explained in what sense they are especially dangerous—why, for example, a perfectly legitimate gun become an intolerable threat to public safety when you add a barrel shroud or an adjustable stock. In fact, a general principle endorsed by Heller—that the Second Amendment applies to weapons “in common use for lawful purposes”—implies that Feinstein’s bill, as Cruz suggested, is unconstitutional.

The rest of Feinstein’s argument takes the following form: I’ve seen people shot; therefore my bill is constitutional. Or as she put it to Blitzer, “When you come from where I’ve come from and [seen] what [I've] seen, when [you've] found a dead body and put your finger in bullet holes, you really realize the impact of weapons.” A legislator who considers such experiences and feelings to be a sound and sufficient basis for passing any law, let alone a law that abridges a fundamental right, is a public menace. Which is why this was the scariest thing Feinstein said during her scolding of Cruz: “I’ve been on this committee for 20 years.”

Update: Here is Ted Cruz’s response. He would not reciprocate and criticize Feinstein. He also noted that DiFi did not answer his question. In response to a Senator McCain calling him a “wacko bird,” Cruz replied “”On the substance, if it makes us wacko birds to stand for liberty, to stand for the Constitution, then that’s a badge of honor I wear proudly.” It’s interesting that Cruz got under DiFi and McCain’s skin so easily. They both apologized later. I don’t know yet if this is counterproductive, or if Cruz is doing the exact right thing.

Update: The Times piles yet another editorial on Ted:

Other Democratic senators jumped in and pointed out some of the ways that other parts of the Bill of Rights were, indeed, limited by exceptions. Interestingly, none of the Republicans came to Cruz’s support. Do you think they ever take a vote for Colleague We’d Most Like to Avoid Meeting in the Elevator? I think we have a candidate.

Then Cruz announced he wanted to “make four points briefly. …” It’s highly unlikely that a single person in the room wanted four points. And they were not in the least brief. But they were remarkable for their incessant self-reference.

“My fourth and final point is that the Constitution, in my opinion, should be the touchstone of everything we do. …”

“I would point out that I am not unfamiliar with the Heller case. Indeed, I represented …”

“In my view, the Constitution is particularly important. …”

Do you think, people, that this is a key to the stupendous impact the Tea Party continues to have on Congress, even now that it’s proved itself to be a loser when it comes to elections? If you combine a lack of a sense of humor with an absence of humility and then stir in a cup of self-righteousness, you are definitely not working on a recipe for cooperative achievement.

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  • Donald_Cooper

    I’m not convinced that your distinctions meaningfully move the ball. Couldn’t a person argue that the 1st and 2nd Amendments are treated consistently in light of their respective social costs and that it just happens to be the case that you disagree on how those social costs should be weighted?

    I don’t think it’s unreasonable to argue that more expansive readings of the 2nd amendment are connected with much greater social costs than more expansive readings of the 1st amendment. (One may disagree, but I don’t think that’s an obviously unreasonable position.) And, if that’s the case, then the greater restrictions on the 2nd amendment than on the 1st amendment are warranted by their social costs (and both rights are treated consistently).

    • http://joshblackman.com/ Josh Blackman

      I agree entirely with what you wrote. In my work, I explain the government’s power to limit rights based on social cost in terms of the imminence of the harm to others. For example, the unlawful incitement to imminent violence standard requires much more deference to the state than printing libelous materials, because the harm is imminent. I would apply the same rubric to the Second Amendment–namely, how likely is it that a certain person who has a gun will harm others. I base this on a person’s propensity for harm based on prior activities. For those who have not show this propensity, I argue that the state has the burden of justifying why the restriction is needed. (rough, rough summary of two lengthy articles).

      • Donald_Cooper

        Does your argument allow for much more thorough background checks and additional limits on resale by private sellers (closing the “gun show loophole”)?

        • http://joshblackman.com/ Josh Blackman

          I don’t have much of a problem with background checks–in fact, I think they are a innovative way to use modern technology to ascertain instantly what a person’s propensity for harm is. To the extent that private sellers can easily access this technology, then there is no problem.