Texas Senator Ted Cruz's question to California Democratic Senator Dianne Feinstein on the Second Amendment in a March 14 hearing forced MSNBC hosts into conniptions, with Joe Scarborough saying that Cruz had made “willfully ignorant” statements and Rachel Maddow claiming Cruz had been “patronizing” to Feinstein as a woman.
At the heart of the congressional debate are the questions: Does the Second Amendment prohibit the federal government from passing laws related to firearms, leaving the role exclusively to the states? Or does the Second Amendment grant Congress the authority to pass laws banning guns whenever it believes it appropriate?
The full text of the Second Amendment is, “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.” Since the militia was a state-managed institution involving every able-bodied citizen, the phrase “shall not be infringed” clearly leaves all regulations — if any — to the states and prohibits all federal legislation on the issue. Indeed, no laws at the federal level on gun possession were passed during the founding generation after adoption of the Second Amendment.
Senator Cruz asked Feinstein the following question in the March 14 hearing on the ban on so-called “assault weapons”:
The Second Amendment in 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 petition their government for a redress of grievances.” It's also found in the Fourth Amendment, “the right of the people to free from unreasonable searches and seizures.” And the question I would pose to the senior Senator from California [Feinstein] 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 the 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 First Amendment? 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?
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Photo of Sen. Ted Cruz: AP Images