This diary began as a comment to Teacherken’s Friday diary which can be found here.
Teacherken suggested I expand it into a diary of its own. So here it is.
I wanted to point out that Texas Junior Senator Ted Cruz’s attack on Senator Dianne Feinstein was reprehensible not simply because he was being arrogant and condescending. It was reprehensible because its premise and content were deceptive and was little more than grandstanding intended to impress the easily fooled and obfuscate the fact that his arguments do not support his claims or intent.
Not to mention that his argument serves, when rationally analyzed, to undermine a core tenet of the gun lobby’s holy canon.
In his arguments, Cruz claims that the founders used what he calls a “term of art” in the bill of rights: “The right of the people.” He claims the term appears in the first, second and fourth amendments and should be considered to be absolute and carry the exact same meaning and weight in all cases. He is wrong.
Let’s begin with the meaning of “term of art.” Term of art is a legal concept that presumes that words used in a legal context mean what they commonly mean. “Double jeopardy” means that a person is at risk of trial or punishment twice for the same crime. As a matter of law, it does not mean they can double their money if they bet it all and get the question right. Basically, “term of art,” in law means that words lawyers use mean what lawyers typically mean them to mean, regardless of whether they might have another meaning in another context. “Punitive damages,” as another example, has a specific meaning. One cannot validly claim that all damages arising from a judgement are punitive and should therefore be waived if the party is immune to punitive damages (as the federal government usually is). Some damages may be compensatory (another “term of art”). The government may be immune from punitive damages but not compensatory damages. The terms of art, “punitive damages” and “compensatory damages,” acknowledge that damages may be applied for differing reasons. This, therefore, precludes the government from claiming that all possible damages are “punitive” and must therefore be waived due to immunity. Without terms of art, legal documents would be full of lengthy diversions along the lines of, “And by that I mean...” “Terms of art” are presumed to have established meanings that are commonly understood without explanation and cannot be arbitrarily changed without due explanation.
Cruz is making a legal claim in his argument that, “the right of the people,” is a term of art. If so, what is its common meaning? What is the indisputable meaning of his chosen phrase? There is none. Not standing alone. “The right of the people” is a form of subordinate clause which must be defined by its relation to another clause. It must be presented as, “The right of the people to...” Or, “The right of the people to be free from...” Or some other similar construction. Standing alone, “the right of the people,” as a term of art is meaningless. It is not the same as stating, “The people have rights.” Such a phrase at least stands alone as a definitive statement, but it is still not a term of art. It still needs to be expanded with example and specifics. The right to be free from standing on the surface of Jupiter may be a fine and dandy right, but if it’s your only right as a citizen it doesn’t do you much good.
The point is that Cruz’s claim that, “the right of the people,” is a term of art is false on its face. He begins with a lie. We can presume he knows it to be a lie (a lie which any first-year law student could easily demolish) and he is making his claim only to be obfuscatory and to pretend to a degree of legal scholarliness which his following claims do not deserve.
Continue below the orange holy cannoli...
Now let’s look at the amendments in question:
Amendment IWe can easily see that Cruz’s fake “term of art” appears in all three, but is constrained by independent clauses so as to carry different weight as intended and applied.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the first amendment, it is clear that the initial clause, “Congress shall make no law,” establishes the parameters for the following clauses about establishment of religion, freedom of speech and press, peaceable assembly, and to petition the government. It is clear that the intent was to forbid “establishment” of laws which arbitrarily restrict the enumerated rights.
It is equally clear in the fourth amendment where the “term of art” leads, but does not define the intent of the amendment; rather, the key term is “shall not be violated.” The amendment then sets down conditions under which a legal warrant may be issued so as not to violate the meaning and intent of the amendment. The intent is clear that searches are legal, so long as the listed parameters are met. Devastating to Cruz’s agenda, his “term of art,” though leading the amendment, is quickly made subordinate to the terms under which this right may, in fact, be violated. (So which is it? Are these rights inviolable, or may they be modified and restricted under rule of law? The latter, of course. But Cruz and his gun lobby masters and cronies would like you to believe that they are not. At least when it comes to guns.)
In both these amendments, the functional meaning of the amendment is predicated upon the various clauses attached to Cruz’s “term of art.” Obviously, no sane person would argue that the first amendment primarily intends that, “Congress shall make no law.” Full stop. And the rest of the text is without merit or worth consideration. Nor would any sane person suggest that the entire intent of the fourth amendment is, “no Warrants shall issue.” Full stop. Again, the intent is predicated on the entirety of the amendment, taken as a whole, not merely Cruz’s spurious “term of art.” You cannot legally or rationally claim that the initial clause, “Congress shall make no law,” in the first amendment does not apply to the right of peaceable assembly simply because the two clauses are separated by a semi-colon in the text.
Cruz would like us to believe that his so-called “term of art” carries some immutable and irrevocable (dare we say, “unalienable?”) meaning that ties the first, second, and fourth amendments together in such a way that abridgement of any means abridgement of all. Again, he is being specious and, presumably, intentionally lying. We have to assume that a lawyer of his education and experience knows he is being ridiculous; that he simply assumes that his audience is ignorant of the basics of law and the press so servile and vapid they will not question or analyze his claims.
I’ve already proven that Cruz’s false “term of art,” cannot be taken alone, but must be taken in context and is entirely dependent upon the associated clauses, and that no clause in the first and fourth amendments can be taken alone, without the rest.
Let’s see what happens when we apply this to the second. The second amendment consists of two simple interlinked clauses, “A well regulated Militia, being necessary to the security of a free State,” followed by the right wing’s favorite fourteen words, “the right of the people to keep and bear Arms, shall not be infringed.”
The right consistently pretends that the second clause stands alone and is not dependant upon the first. But if that is the case, what happens to Cruz’s “term of art?” If the first clause can be separated from the second, then, in the first amendment and fourth amendment, any independent clause can also be separated from the rest. This renders those amendments gibberish. Of what use the phrase, “particularly describing the place to be searched.” Are we to assume the bill of rights intends that all places that might be searched be described as a matter of course? Of what use the phrase “or prohibiting the free exercise thereof?” Exercise of what?, and can you burn calories this way?
By making his claim that his “term of art,” a simple subordinate clause, “The right of the people,” is inseparable and integral to the entire meaning and content of the first and fourth amendments he, by his own logic, insists that the same is true for the second. And in doing so he, obviously unwittingly, shoots down (ha, ha) the prime argument of the gun lobby: That the initial clause of the second amendment is irrelevant to the following clause, that the second half stands alone. That the founders intended that “the right of the people to keep and bear Arms, shall not be infringed,” was the entire intent and purpose of the amendment and that whole bit about militias was a mistake and should be ignored.
By Cruz’s own insistence this cannot be true. The two clauses of the second amendment must be taken as a whole and are equal in weight and meaning to the first and fourth amendments. The right to keep and bear arms is predicated on the creation of a militia. Sans militia, no right to keep and bear arms. Without membership in a militia, no right to keep and bear arms.
The rest of his elaborately laid trap for Feinstein, getting her to “admit” that she supports restrictions on the first amendment (quelle horreur!) as if that invalidates her attempts to place restrictions on gun ownership, and invalidates her, as well (the arrogant, condescending bastard!), is ridiculous on its face. Obviously we do have existing restrictions on the first and fourth amendments, as so many Democratic senators and members of the press have taken great pains to point out. As we do on all the amendments (except perhaps, the third. But then no one has been trying to quarter troops in our houses, recently).
Cruz’s entire “argument” is flawed from the start. It was arrogant, condescending, and deceptive. His pretense of scholarly legal expertise is false. He is nothing but a sleazy ambulance chaser using whatever specious arguments he can dream up, regardless of the law or simple, basic logic to advance his predetermined ideological agenda. He is nothing but Scalia light. Very light.
Yet, he appears to be the best the right can muster. Which is kind of pathetic.