I'm supposed to be pumping my fist triumphantly in response to a confrontation that took place this morning in the Senate, some time before the Judiciary Committee approved a bill to ban assault weapons:
The 10-8 vote came after a heated exchange between Sen. Dianne Feinstein (D-Calif.) and Sen. Ted Cruz (R-Texas), who Feinstein scolded for giving her a "lecture" on the Constitution....Here's the problem: Right-wingers (e.g., The Weekly Standard and Fox Nation) think the exchange was a win for their side -- and if people in the middle see a clip of this, I'm far from certain that they're going to think Feinstein was in the right.
Feinstein became furious at one point with Cruz, who she saw as lecturing to her about the meaning of the Constitution and why the framers of that document used certain language.
"I'm not a sixth grader," she told the freshman Tea Party favorite. "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 ... 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."
As a good liberal, I'm supposed to see a veteran legislator with firsthand experience of gun violence lecturing an arrogant young whippersnapper. But when I try to imagine the way someone without preconceptions would watch this, I see Ted Cruz coming off as a reasonable and well-informed guy -- and Feinstein coming off as dodging his opening question, which is as follows:
If I might pose a question to the senior senator from California: In your response to Senator Cornyn, you mention that there's some one hundred pages of the bill that specify particular firearms that, if this bill were passed, Congress would have deemed prohibited.I know it's hard, but try to watch this if you didn't have a rooting interest. Cruz isn't heckling or patronizing Feinstein -- he's asking her whether his analogy is valid. It's a reasonable question -- and not a particularly hard question to answer, particularly with regard to the First Amendment, because we have all kinds of laws that restrict what people can read that are regarded as constitutional: laws against libel, laws against child pornography, laws against adult pornography, laws restricting the release of government secrets, copyright laws, laws restricting false claims in commercial speech.
It seems to me that all of us should begin, as our foundational document, with the Constitution. And the Second Amendment of the Bill of Rights provides that the right of the people to keep and bear arms shall not be infringed. The term "the right of the people," when the Framers included it in the Bill of Rights, they used it as a term of art. That same phrase, "the right of the people," is found in the First Amendment: "The right of the people to peaceably assemble and to petition their government for redress of grievances." It's also found in the Fourth Amendment: "The right of the people to be free from unreasonable searches and seizures."
And 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?
Feinstein should know that this is the answer. Feinstein should also know that there are a tremendous number of other ways in which the right to free speech is restricted. You need a permit for certain kinds of demonstrations. You can be prevented from standing outside a house at three in the morning and hectoring the residents with a bullhorn if noise restrictions forbid that. You have only as much workplace free speech as your boss allows. You don't have First Amendment carte blanche to threaten and intimidate people.
The answer to this question is that every constitutional freedom is understood to have limits except the right to keep and bear arms, at least as the gun community interprets that right. (Cruz's citation of the Fourth Amendment is absurd -- the Fourth Amendment restricts only "unreasonable" searches and seizures, leaving a fair amount of leeway for lawful ones.)
Faced with the opportunity to trump what Cruz regards as his ace, Feinstein fails. After her complaint about his "lecture," Cruz restates the question: "would it be consistent with the Constitution for Congress to specify which books are permitted and which are not?"
She replies: "The answer is obvious: no." Thus giving the round to Cruz, and passing up the opportunity to point out that the answer is not obvious.
Pat Leahy compounds the problem by bringing up the utterly irrelevant issue of Texas curriculum standards -- now, I yield to no one in my contempt for those standards, but every education board selects some curriculum materials and rejects others, so even if Texas's choices are far worse than others', that's not a free speech issue.
Eventually, other Democrats (and ultimately Feinstein) mention child pornography. As the clip cuts off, Dick Durbin says the right thing: "None of these rights are absolute. None of them."
But it shouldn't have taken all the Democratic senators on the Judiciary Committee that long to arrive at the right answers. If the right is going to continue generating cockamamie ideas at its current furious pace and disseminating them relentlessly through all available means (everything from Fox News and talk radio to your uncle's e-mail forwards), and if the mainstream press is going to continue to treat the party of these ideas as a serious and responsible partner in governance, and if this party is still going to continue to win plenty of elections and control much of the government, then Democrats have to be able to refute this cloacal tsunami of bad ideas on their own terms. If a guy like Ted Cruz is going to go all "constitutional" on Dianne Feinstein, then she and her fellow Democrats need to know precisely how to throw the way the Constitution has actually been applied in the real America (as opposed to Tea Party Fantasy America) back in Cruz's face.
Otherwise, we're going to wake up one day with Ted Cruz as President Rand Paul's first Supreme Court appointment. And low-information heartland America will have no idea why anyone would have a problem with that.
