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Ted Cruz, freshman Senator from Texas, is a man of some intellect, no doubt, and the United States Senate is blessed by his willingness to share his intellectual bounty in the form of ad hoc lectures.

Senator Dianne Feinstein, who has served as a Senator from California for over 20 years, is a recent beneficiary of Senator Cruz's pedagogic expansiveness. Her edification occurred during a hearing of the Senate Judiciary Committee.  The issue was the ban on the sale of assault rifles and Senator Feinstein's inability to reconcile her emotionalism with the clear and manly dictates of the United States Constitution, which Senator Cruz illustrated with the following brilliant analogy:

"... the question 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?"

Senator Cruz didn't appear surprised when Senator Feinstein ignored the substance of his argument and instead responded with more sentimentalism and cantankerous grousing about the educational value of his lectures. Unfazed, he generously praised her "sincerity" and "passion," and then gently pointed out that she had failed to answer his question.

Senator Cruz deserves better than that, and I thought we should look at his argument by analogy a little more closely.

In the first part of his analogy, guns are books. The question is clear: how is Congress passing laws prohibiting the sale of certain kinds of guns any different than Congress passing laws against certain books? Would we want Congress deciding which books we can read and which we can't?

Think of it this way: A .38 Special is like, say, Last of the Mohicans.  A shotgun is Moby Dick. A .22 rifle is like The Call of the Wild.

An AR-15 is like The Catcher in the Rye.  Yeah, the AR-15 is controversial and seems to be associated with a few high-profile killings, but do you want Congress saying you can't read it? Do you want the government telling you that you can read Moby Dick, but you can't read The Catcher in the Rye? Do you see the brilliance of the analogy yet?

And an M-16 is like Lolita. An M-240 machine gun could be The Color Purple.

Do you want to live in an America where you're not allowed to read The Color Purple?

A bazooka could be Are You There, God?  It's Me, Margaret.  Think of a flamethrower as Lady Chatterley's Lover.

So you can see, because armaments and books are the same thing in the context of Constitutional law, prohibiting the sale of an assault rifle is tantamount to removing Judy Blume's books from the school library. Preventing me from owning a flamethrower is the same as not letting me read D.H. Lawrence. If I can't buy a nuclear bomb at Walmart I might was well be looking for a copy of The Satanic Verses in downtown Tehran.

So, if we must literally equate the freedoms guaranteed by the Bill of Rights, and clearly we must, then there can be no restrictions on the sale of arms, no matter how reasonable those restrictions might seem to some people, just as there are no restrictions on the sale of books.

The second part of the analogy is meant to drive the point home.  For Congress to deem that the sale of certain weapons shall be prohibited is the same as deciding that the Fourth Amendment's protection against searches and seizures applies to only certain individuals.  Again, do you want to live in an America where exceptions are made when lawmakers decide a search or seizure is reasonable?

Actually, the Fourth Amendment explicitly states that it is only a guarantee against "unreasonable" searches and seizures, which gives Congress some wiggle room when it comes to making laws, allowing them to argue what is reasonable. Also, the Amendment itself provides for some specific conditions that will make a search reasonable.

So the Fourth Amendment appears to be written with the idea that Congress will make laws defining the difference between reasonable and unreasonable, and even provides some guidance to the circumstances under which the government can search and seize.  It's a rather fickle Amendment, the Fourth.  It lacks a certain masculine forcefulness.  So why would Cruz choose it from the others to make his point?

I assume he wanted to emphasize that the references to reasonableness present in the Fourth Amendment are not present in the Second. The Fourth Amendment is a guarantee only against "unreasonable" searches and seizures.  The Second Amendment, on the other hand, is a guarantee of arms ownership that is not limited by any notion of reasonableness.  Like the guarantees of the First Amendment, the guarantee of the Second Amendment is absolute beyond any reason.

If the Founding Fathers wanted ownership of arms to be constrained by "reasonable" limits, wouldn't they have said so? Sure, during their time the arm being borne was usually the long rifle, an all-purpose, elegant tool made by local artisans which served as a soldier's weapon, a hunting rifle, and for home protection.  But - guided as we know they were by God - can't we assume the Founders foresaw the eventual differentiation between weapons designed for military use and those designed for domestic use, between hunting rifles and rocket propelled grenades? Surely if the omniscient Founders didn't want me to own an RPG mass-produced in some erstwhile Soviet factory they would have added something like "within reason, for the love of God!" to the Second Amendment.

But they didn't. Which is why so many Americans have an unreasonable attachment to firearms.  The essential tool of frontier life has become a shiny toy to fuel fervid daydreams of epic patriotic heroism, at the occasional cost of a few extra schoolchildren in the real world. We must assume that lunacy was always the Founders' intent, and, God bless him, Senator Cruz is here to remind us of that.

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Comment Preferences

  •  Lots of 1st and 4th Amendment SCOTUS law (5+ / 0-)

    over the years.  

    Free speech can be regulated in time, place and manner.  (I wrote my law review article on this in law school way back in the 1970's).  No one has the right to a parade permit down the Washington Beltway during rush hour.  No one has the right to stage a noisy demonstration with mikes and loud speakers at 3 a.m. in a residential neighborhood.  And, of course, no one has the right to holler "fire" in a crowded theatre (unless it really is on fire).  No one has the right to incite violence where there is an immediate danger that the audience will carry out the violence.

    On the Fourth Amendment, if there are exigent circumstances, the police do not need a search warrant.  If a women is yelling out of the window that she is being raped, the police do not need a search warrant to enter.   And if the police are lawfully in a home per a search warrant, or invited in, they do not need a search warrant to seize what is in plain view, even if the unlawful object is not specified in the warrant.

    So these rights are not absolute, no right is.

    "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

    by Navy Vet Terp on Tue Mar 19, 2013 at 05:31:45 PM PDT

  •  That's the way it should be done (0+ / 0-)

    It’s nice to read an essay that dispassionately analyzes an argument instead of resorting to vitriol, that treats the person who advances it with respect instead of insult.  I’m not saying that Senator Feinstein could be expected to respond immediately to Cruz’s questions and criticisms with the same thoughtfulness that you have displayed, since you had the opportunity to think the matter over.  But she should have remained calm.  She should have admitted that he had made some interesting points, and that she needed some time to give them the consideration they deserved.

    Instead, she only made herself look weak by bristling at being lectured, as she put it.  She probably thought that her anger would be taken as proof of the righteousness of her position, when in fact it was only an indication that she is not capable defending her position against his criticisms.

  •  A subtle and astute analysis of the thought of (2+ / 0-)
    Recommended by:
    Kimbeaux, txdoubledd

    the renowned constitutional scholar and literary critic Prof. Sen. Ted Cruz.  If I may, however, quibble with your view that in his analogy Cruz claims "guns are books".  Cruz actually is claiming, I believe, that books are, in fact, guns.

    Thus having a copy of 1984 tucked into your waistband will provide you with easily accessible ammunition to quickly counter the crazy propaganda typically espoused by Tea Party Patriots.

    A hard-cover edition of Lord of the Flies at the ready on your bookshelf will help you deal with the apocalyptic rantings of all manner of conservatives.

    And a dog-eared copy of Fyodor Dostoyevsky's The Idiot always comes in handy when one is trying to make sense of the comments of a Republican senator.

    Proud to be a Truth Vigilante

    by Calvino Partigiani on Tue Mar 19, 2013 at 06:06:23 PM PDT

  •  Cruz Was Born In Canada To A Cuban Father.... (1+ / 0-)
    Recommended by:

    but since his mother was a US citizen, no problem.  No reason to even discuss his legitimate citizenship.

    Barack Obama was born in Hawaii to a Kenyan father, but there is a problem even tho his mother was a US citizen. In his case, a short form & a long form birth certificates must be produced.....and there's still a problem.

    He's not considered "a natural born citizen" & therefore not eligible to be President of the United States.  At least, that's the way Orly Taitz & FOX News & many sitting Republican senators & representatives in the Republican party see it.

    Different standards for different parties, apparently.  In fact, Republicans are now talking about running Cruz for President in 2016.  No problem.  

  •  Its sounds like a cool super hero (1+ / 0-)
    Recommended by:
    Calvino Partigiani

    Ted Cruz: Master of Analogy
    Denier of Reality...
    Watch out Texas, he wants to be your friend

    What do you mean someones at the door?~Bin Laden

    by Max Runk on Tue Mar 19, 2013 at 08:32:07 PM PDT

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