Today’s Mass Shooting in the Pittsburgh
Synagogue,
the Second Amendment, and Ted Cruz
October 27, 2018
The sad news of another
mass shooting, this one in a synagogue in Pittsburgh, impels this pop quiz for
Ted Cruz:
A Quiz for Ted Cruz About the Second Amendment
by Josiah M. Daniel, III
Dear Senator Cruz:
Who said this?:
“Like most
rights, the Second Amendment right is not unlimited. [It is] not a right to
keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.”[1]
Answer: No,
not Barack Obama, or Hillary Clinton, or Nancy Pelosi. It was your personal
hero, the late Justice Antonin Scalia, whom you have called “a passionate
champion of th[e] humbler view of the judicial role,” that is, the view that
“the Constitution has a fixed meaning and a judge’s task is limited—to discover
what that meaning is, not to make it up.”[2] As
you have acknowledged, Justice Scalia “authored some of the most important
decisions ever, including District of Columbia v. Heller, which
recognized our fundamental right under the Second Amendment to keep and bear
arms.”[3]
The above quotation—which
makes clear that the right to a gun is not absolute—is directly from the that
same Heller decision—authored by Justice Scalia before his
death in 2016.
So why do you continually
and misleadingly speak of the Second Amendment as if it were an absolute right?
To the NRA convention in Houston this past May 4, you proclaimed “the Supreme
Court recognized in District of Columbia vs. Heller that there
is an individual right to keep and bear arms protected by the Second
Amendment,”[4] but
you never mentioned that, in the same decision, the Justice Scalia validated
reasonable restrictions and conditions that states may properly place on guns
and their owners. Instead you continue to mouth such meaningless aphorisms as
“when guns are outlawed, only outlaws will have guns,” and your NRA speech actually
belittled gun safety measures as merely “fiddling with the lengths of barrels,
capacities of magazines, open and concealed carry [that] inch toward . . . the
practical elimination of the Second Amendment.” You added that such efforts
“hav[e] failed to gut the Second Amendment in Congress”[5];
but of course congressional legislation cannot “gut” or supersede the
Constitution; rather, Congress and the States may enact reasonable limits on
gun ownership and use, according to Justice Scalia.
In fact, in the Heller case,
Justice Scalia expounded on some reasonable gun restrictions: “For example,
concealed weapons prohibitions have been upheld under the [Second] Amendment
[and there is no] 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.”[6]
Are you unaware of or are
you ignoring the history of restrictions on guns in this country and, more
specifically, in our state. After World War I, gun manufacturers freely sold
the Thompson submachine gun the public, and gangsters and criminals eagerly
bought it and used it in a nationwide crime wave. The federal government was
slow to act, so states took it into their own hands to outlaw Tommy guns and
other gangster weapons such as sawed-off shotguns, automatic pistols, and
silencers.
Our Texan ancestors,
pertinently, did not sit on their hands. In the Act of Oct. 25, 1933,[7] the
legislators of Texas enacted a prohibition of all automatic weapons, joining
many other states. The next year, the federal government finally passed a
criminal statute, the National Firearms Act of 1934, that required registration
plus payment of a $200 tax (about $3,600 in current dollars) as the conditions
for ownership of machine guns and sawed-off shotguns; and in 1939 the U.S.
Supreme Court upheld the Act's constitutionality in a 1939 case.[8]
So Texas—which in 1933
totally prohibited, and did not simply condition ownership of, automatic
weapons—went even further than the federal government. This is history that
informs the current considerations and discussions of what can and should be
done. Our longstanding Texas statutes prohibit possession of, among other
things:
(A) an explosive
weapon [defined as “any explosive or incendiary bomb, grenade,
rocket, or mine”];
(B) a machine
gun [defined as “any firearm that is capable of shooting more than
two shots automatically, without manual reloading, by a single function of the
trigger”];
(C) a short-barrel
firearm [defined to include “a shotgun with a barrel length of less
than 18 inches”]; or
(D) a firearm
silencer.
The elected legislators
of our Texan grandparents and great grandparents enacted a prohibition on the
ownership of machine guns to solve a large public problems—gangsters with Tommy
guns killing innocent people—and this history should shame those who today,
such as yourself, who deny the constitutionality of even reasonable
prohibitions on military-type guns and sales of such guns to those persons who
have a high likelihood of causing mass casualties with them (such as the insane
and minors) and imposing reasonable conditions, such as background checks and
waiting periods, for all others who desire to buy a gun at a gun store or at a
gun show, along with enhanced prohibitions on guns in vulnerable places such as
schools and public buildings.
Let me pose a few more
questions to you, Senator:
- On
March 1, 2018, the U.S. District Court for the Eastern District of Texas
issued its order that the U.S. Marshals shall "[a]dopt
procedures excluding the carrying of weapons by any and
all persons other than" Marshals and their deputies and other court
security personnel in the federal courthouses of the district (which
covers East Texas from Beaumont to Sherman). Do you think this particular
prohibition on guns either violates the Second Amendment or is a bad
policy generally?
- Do
you think it to violate the Second Amendment or to be a bad idea for
states such as Texas and local governments such as Dallas and Austin to
prohibit the celebratory shooting of firearms within city limits?
- Do
you think the prohibition on ownership of the .50 caliber machine gun
violates the Second Amendment or is a bad policy generally?
I anticipate your answers to each question to
be "No." So the right to a gun is not absolute, is it?
Total gun deaths in the United
States today average around 37,000 a year; two-thirds are suicides and
approximately are 12,000 homicides by gun. Mass shootings—defined as resulting
in four or more people wounded or dead—now occur in the USA, on average, once
or more per day. The 37,000 gun deaths is about equal to annual vehicular
deaths. Guns, particularly those capable of rapid fire of many rounds
without reloading, have caused a very large public health problem for Texans
and all Americans. But you have done virtually nothing about it. You joined
Senator Chuck Grassley in sponsoring a bill that says it is to improve
background checks but in fact that bill would do so in only the most minor
ways. And most recently, on August 21, you introduced what you call your
“School Safety Amendment” to a pending appropriations bill, asserting that it
will “empower local officials with resources to harden schools [and] keep
students safe.”[9] Specifically
your amendment provide federal funds for school districts to pay for
“infrastructure or technologies” that among other things will “[c]ontrol access
to school premises or facilities, through the use of metal detectors” and
“[c]over and conceal students within the school during crisis situations.”
These unfortunately are necessary band aids for the public health crisis that
guns are more and more causing. But you will not hear of any real cures:
reasonable limits on guns and their owners.
Heller makes
clear that what the Second Amendment does is to confer an individual right to
keep and bear arms for the purpose of protection of the home. “Of course,” said
Justice Scalia, “the right was not unlimited,” and it does not “protect the
right of citizens to carry arms for any sort of confrontation.”[10] Like
the reasonable regulation of automobiles, including the requirement of carrying
liability insurance, the legislators of the Texan people should follow the
history of our Texan ancestors and should enact—the sooner the better—some
common-sense “prohibit[ions]” and “conditions and qualifications” (again I'm
directly quoting Scalia) on guns.
The only bona fide question for public discussion, I
submit, is where to draw the lines. Is a prohibition on sales to mentally
unstable persons an exercise of good common sense? Should there be a waiting
period before a firearm sale is made so that the buyer's background can be
checked? Do hunters need military assault rifles and magazines of fifty rounds
to kill deer and other game or should such weapons be restricted?
I own several sporting firearms that I use for hunting game. As a
gun owner and a retired Texan concerned about the safety of my grandkids, I
answer "YES" to the questions of the preceding paragraph. If those
restrictions were enacted, they would not violate the Second Amendment as
interpreted by Justice Scalia. And, really, in all honesty, you too must agree,
Senator Cruz.
[2] Ted Cruz, The Scalia Seat: Let the People Speak,
Wall Street Journal, May 6, 2016, available at https://www.cruz.senate.gov/?p=press_release&id=2606.
[3] Feb. 16, 2016, statement of Cruz upon the death of
the
Justice…https://www.businessinsider.com/ted-cruz-antonin-scalia-death-dead-2016-2
[4] Ted Cruz, Ted Cruz: Freedom only exists if citizens
have the means to defend it, Dallas Morning News, May 3, 2018, available
athttps://www.cruz.senate.gov/?p=press_release&id=3783.
