On March 14, Senators Ted Cruz (R-TX) and Diane Feinstein (D-CA) clashed over the 2nd Amendment during a committee hearing. (Video here.) If you search the Web for the exchange, you’ll find headlines like this, “Senator [Cruz] Schools 6th Grade Senator Dianne Feinstein … on the US Constitution,” and others like this, “Feinstein Smacks Down Cruz Over Gun Ban.” A majority of the sites that carry clips or transcripts presume that Cruz won; they delight in turning Feinstein’s remark, “I am not a sixth grader,” against her. But several liberal sites portray the exchange as a clear win for the Democrat.
I am on Feinstein’s side on the issue of gun control. And I am open to the possibility that Cruz patronized her, “man-splaining” conservative 2nd Amendment doctrine as if Feinstein was a student. But she is the senior Senator from the nation’s largest state, and I would think she could take his rather scholarly question in stride. Indeed, Cruz put his finger on a central issue, and Feinstein owed him a real answer. The response I would recommend would go something like this ….
Senator Feinstein: Senator, I agree that all of us should begin with the Constitution as our foundational document. We owe the text respect as the charter that has carried us this far. Besides, every large group of people needs an agreement to regulate their interactions, and individuals cannot simply ignore the parts of the agreement that they dislike. Because the right to bear arms is in the Constitution, I will give it deference.
But none of us treats every line of the Constitution with equal respect. It isn’t holy writ. The original text acknowledged slavery. The 21st Amendment had to be enacted to repeal the 18th. There are many aspects of the fundamental design that could be improved, starting with the Electoral College. We are allowed to read certain parts of the document expansively while we treat others as challenges. Americans disagree about which clauses are inspiring and which are problematic, and that debate is an appropriate one.
I read the First Amendment expansively–more so than the Framers envisioned. I think it protects pornography, blasphemy, and knowingly false statements against public officials like you and me. I maintain that it absolutely forbids prior censorship and organized sectarian prayers in public schools. I think it gives freedom of the press to anyone who starts a blog (even though she doesn’t own a “press”). This is because I bring to the Constitution an elaborate theory of free speech that had already begun at the time of the Framers–Jefferson was an important source–but that has developed since then thanks to John Stewart Mill, Alexis de Tocqueville, and many others.
I will yield to you on the Framers’ intent when it comes to the Second Amendment, although I never thought they wanted individuals to own any weapons they chose. In any case, I dissent from an expansive theory that holds that private gun ownership defends us against tyranny or reduces crime. We can debate such theories, and I am obliged to consider all evidence. But I find it completely implausible that private gun ownership will deter the federal government from violating individual rights in the ways that our government is prone to do.
Since the Second Amendment does not belong within a full political theory that I find plausible, I defer to it simply because it is actually in the Constitution, because a majority of Americans clearly prefer to keep it there, and because the Supreme Court has chosen to read it much as you want them to. I respect all that. But I am perfectly comfortable advocating legislation on the basis of an expansive definition of free speech and a narrow reading of the right to bear arms. This is not a contradiction; it is a political position that I proudly take within our constitutional order. The difference between you and me is not that one of us cares about the Constitution and the other flaunts it. We simply disagree about how to read and apply it, just as our predecessors have done for 226 years and our grandchildren will do after we are gone. Let us exemplify for them how responsible Americans disagree.