Following Senator Ted Cruz’ now-famous exchange with Senator Dianne Feinstein about her proposed assault-weapons ban, the Left leapt to Feinstein’s defense in the only way possible — by attacking Senator Cruz’s character and record. Rather than respond to Cruz’s question to Feinstein, in which he asked if the Second Amendment deserves less protection than the First and Fourth Amendments, the gun-control crowd has resorted to calling Cruz a hypocrite.
The hypocrisy charge springs from Senator Cruz’s argument that the Supreme Court’s 2008 Heller decision bars Feinstein’s assault-weapons ban. That argument allegedly contradicts statements made in the pro-Second Amendment amicus brief that Cruz submitted in Heller on behalf of 31 states, including Texas, where he was solicitor general at the time.
Cruz’s brief, the Left claims, asserts “that a favorable ruling in [Heller] would not undermine the constitutionality of the 1994 federal assault weapons ban” (People for the American Way), nor would it endanger “gun regulations . . . in the States of Connecticut, Massachusetts and New York which prohibit ownership of the very assault weapons that would be banned by the Feinstein legislation” (Rick Ungar at Forbes).
Neither claim about Cruz’s brief is true. The brief does state that “None of the federal firearms regulations discussed in the United States’ brief is jeopardized by [striking down the D.C. hand-gun ban at issue in Heller].” However, the relevant section of the brief (pages 21–22 and 25–27, as cited by Cruz) never mentions the 1994 assault-weapons ban. In fact, the only reference to the assault-weapons ban in the entire brief is a single sentence in the “Facts” section noting that a ban on “semiautomatic assault weapon[s]” expired in 2004 (page 2). It is precisely because the expired ban was no longer relevant that neither Cruz nor the United States weighed in on its constitutionality.
What Cruz’s brief did say was that “federal law generally prohibit[ing] the possession of both machine guns and firearms that are undetectable by metal detectors and x-ray machines” would not be invalidated if the Court struck down the District of Columbia’s hand-gun ban. There is no evidence that Senator Cruz believes otherwise today. The Heller decision made it clear that the Second Amendment protects firearms “in common use” — such as the 4 million assault weapons Americans own today — but doesn’t protect “weapons not typically possessed by law-abiding citizens for lawful purposes,” such as machine guns and guns designed to evade metal detectors.
The claim that Cruz’s brief supported the constitutionality of state bans on assault weapons is based on the brief’s Appendix and is equally false. The brief notes that the 31 states filing it “have a strong interest in maintaining the many state laws prohibiting felons in possession, restricting machine guns and sawed-off shotguns, and the like,” while citing the Appendix. The Left’s argument that Cruz was thereby endorsing the constitutionality of all state gun laws listed in the Appendix is rendered laughable by the fact that the Appendix includes D.C.’s hand-gun ban, the very statute that Cruz’s brief argued must be struck down.
In fact, Cruz’s brief went out of the way to note that the 31 amici states for whom he was writing did not agree on the constitutionality of many of the state laws listed in the Appendix. Cruz wrote that “On more difficult questions involving the [Second] Amendment’s application — such as registration requirements and comprehensive regulation — the many amici States may well part ways.”
It should come as no surprise that the gun-control crowd is using fallacious attacks on Senator Cruz’s consistency to try to boost the flagging prospects of Feinstein’s assault-weapons ban. It’s typical of the arguments we have seen from that crowd since Newtown — long on self-righteous indignation and name-calling but short on truth and logic.
— Curt Levey is a constitutional law attorney and the President of the Committee for Justice. He can be reached on Twitter at @Curt_Levey.