Posted by AzBlueMeanie:
The Senate Judiciary Committee today completed passage of a package of four bills for gun safety, including the assault weapons ban renewal by Sen. Dianne Feinstein (D-CA). The ghost of Joe McCarthy, Senator Ted "Calgary" Cruz, decided to demonstrate once again that he is an obnoxious prick who thinks too highly of his own intellectual prowess. He decided to query Senator Feinstein, in that smug prickish way of his, as follows:
The question that I would pose to the senior senator from California, 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 and 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? Likewise, would she think that the Fourth Amendment protections against searches and seizures could properly apply only to to the following specifified individuals, and not to individuals that Congress has deemed outside of the protection of the Bill of Rights?
The conservative media entertainment complex is all atwitter today with excitement over the piqued response this baiting by Sen. McCarthy Cruz elicited from Sen. Feinstein (in the video below the fold). The wingnuts think that "Calgary" carried the day with his absolutist position on the Second Amendment.
Spoiler Alert: "Calgary" is wrong. Congress and the U.S. Supreme Court have both placed limitations on these specific amendments. As Senator Dick Durbin (D-IL) stated after this exchange, "the Senator knows, having attended law school and professes to have some experience in the Constitution, that none of these rights are absolute. None of them."
Here are some of the constitutional tests on the limitation of First Amendment speech of which law professor Ted Cruz should be aware. Limits of Freedom of Speech - The Freedom Forum:
Clear and Present Danger: Will this act of speech create a dangerous situation? The First Amendment does not protect statements that are uttered to provoke violence or incite illegal action.
Fighting Words: Was something said face-to-face that would incite immediate violence?
Libel and Slander: Was the statement false, or put in a context that makes true statements misleading? You do not have a constitutional right to tell lies that damage or defame the reputation of a person or organization.
Obscenity: In June 1973 in Miller v. California, the Supreme Court held in a 5-to-4 decision that obscene materials do not enjoy First Amendment protection [the so-called "LAPS" test]. In FCC v. Pacifica Foundation the court “recognized an interest in protecting minors from exposure to vulgar and offensive spoken language.”
Conflict with other legitimate social or governmental interests: Does the speech conflict with other compelling interests? For example, in times of war, there may be reasons to restrict First Amendment rights because of conflicts with national security. To ensure a fair trial without disclosure of prejudicial information before or during a trial, a judge may place a “gag” order on participants in the trial, including attorneys.
Time, place and manner: Did the expression occur at a time or place, or did the speaker use a method of communicating, that interferes with a legitimate government interest?
And limitations on the Fourth Amendment? Please. There is not much left of the Fourth Amendment after Congress and the courts have hacked away at any expectation of privacy -- from warrantless DNA swabs, blood samples, breath samples and urine samples; to warrantless vehicle searches; to "sneak peak" warrantless searches under the PATRIOT Act; to warrantless electronic eavesdropping of communications.
Then there is my personal favorite, being classified as an "enemy combatant" by the president and denied all other constitutional rights: arrested without being charged, not being brought before a court of law, not entitled to representation by counsel, not entitled to a speedy trial (indefinite detention), and being subjected to cruel and unusual punishment (torture and rendition to black site prisons in foreign countries). Congress actually enacted these laws and the U.S. Supreme Court has upheld them.
So spare me the theatrics, "Calgary." This prick was playing to the conservative media entertainment complex and its ignorant Tea Party audience.
The Second Amendment is not an absolute right. In District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller I), Justice Antonin Scalia's majority opinion did not 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. The Court's holding in Miller that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
BTW, Ted Cruz was the Council of Record for an Amicus Brief filed in the Heller case by Texas and other states. Presumably he read the Court's opinion.
In Heller v. District of Columbia, (Heller II), the District of Columbia enacted new firearms restrictions in an effort to cure the constitutional defects that the Supreme Court had identified in Heller, specifically three new provisions: (1) the firearms registration procedures; (2) the prohibition on assault weapons; and (3) the prohibition on large capacity ammunition feeding devices.
On March 26, 2010, the D.C. District Judge Ricardo M. Urbina denied Dick Heller's motion for summary judgment and granted the cross motion for summary judgment, finding that the court "concludes that the regulatory provisions that the plaintiffs challenge permissibly regulate the exercise of the core Second Amendment right to use arms for the purpose of self-defense in the home."
Legal experts say the decision in District of Columbia v. Heller has been of mainly symbolic importance so far. There have been more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and few of them have succeeded.
The courts have upheld laws making it illegal to carry guns near schools or in post offices. They have upheld laws concerning unregistered weapons. And they have upheld laws banning machine guns and sawed-off shotguns. Supreme Court Gun Ruling Doesn't Block Proposed Controls - NYtimes:
Nor does Heller impose any major hurdles to many of the most common legislative proposals in the wake of the Newtown shootings, said Adam Winkler, a law professor at the University of California, Los Angeles, and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.” Among the responses that Heller allows, he said, are better background checks, enhanced mental health reporting and a ban on high-capacity ammunition clips.
* * *
[The Heller] decision also contained a long list of laws and regulations that would, the court said, be unaffected. Among them were “laws forbidding the carrying of firearms in sensitive places such as schools.”
“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Justice Scalia wrote. Government buildings in general could still ban guns. And the court said it had no quarrel with “laws imposing conditions and qualifications on the commercial sale of arms.”
Justice Scalia added that laws banning “dangerous and unusual weapons” are “another important limitation on the right to keep and carry arms.” He gave an example: “M-16 rifles and the like.”
When the case was argued in 2008, Justice Scalia suggested that other kinds of weapons and ammunition could be regulated. “I don’t know that a lot of people have machine guns or armor-piercing bullets,” he said. “I think that’s quite unusual.”
"The main obstacle to the passage of such measures is likely to be politics, not constitutional law, scholars say."
Ted "Calgary" Cruz was playing politics to the ignorant Tea Party base today.
UPDATE: Greg Sargent has more on why Ted Cruz is wrong about the Constitution.
UPDATE: Joe Scarborough agrees. Morning Joe Blasts Tea Party Darling Ted Cruz: ‘Willfully Ignorant,’ ‘Condescending,’ ‘Playing To Illiterates’.
UPDATE: NY Times columnist Gail Collins writes about "mansplaining" from Senator Cruz, "After Senator Ted Cruz gave an extensive lecture to Senator Dianne Feinstein this week, I think we have a candidate for the senator who could patronize a doorknob." The Dread That Is Ted.