Ted Cruz: New Gun Control Proposals 'Unconstitutional'

A Texas Repuke opposing gun control measures? Go on!

Senator Cruz is also a Supreme Court Justice.

He's risen fast in Washington!

How can you have "Well regulated" without gun control?

... that the framers were just smoking crack when they included that whole "well regulated militia" thing and really didn't mean a word of it.

more than the Founders, don't you know?

Yes, well, he certainly has made his career believing that to be the case.

In the case of Gonzales v. Raich, 545 U.S. 1 (2005), Angel Raich was growing marijuana for her own medicinal use, legal under California law. The Supreme Court, in a 6-3 decision, held this to be illegal under Federal law. A concurring opinion was written by Scalia, who based the decision ultimately under the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As US v. Lopez, 514 U.S. 549 (1995) itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could ... undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.

Interestingly enough, Justice O'Connor based her dissent on exactly the same case Scalia based his concurrance, Lopez. She said that Lopez placed limits on Federal use of the Interstate Commerce clause and Raich's use of marijuana came under those limits.

Clarence Thomas, of all people, said that the majority was wrong, saying that Raich grew and used

marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal government is no longer one of limited and enumerated powers. ... By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.

Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".

The gist of Thomas' dissent comes straight out of original intent:

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

I believe that here, Thomas is quite right, and Scalia only really supports "original intent" when he agrees with it.

The number of rulings in which he has conveniently selected snippets of original intent taken out of context with which to justify his constant ideological activism are beyond counting. Yet he presents himself as some sort of originalist purist and lambasts other judges for legislating from the bench. Gawd, that man sickens me.

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.

Strictly speaking, it's not the firearms that are being regulated.

It's the militia. The people.

So how can you have "well regulated" without people control? After all, wouldn't a poorly regulated militia be a threat to the security of a free state?

And that means that the Founders really considered the population to be a threat. Just like the British did, in restricting gun possession to landed gentry and those people tightly controlled in the military.

"A militia that's subject to a lot of regulations and limitations being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Or let's say it means gun control.

"A militia with tightly controlled and regulated arms being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed." I guess if you're really afraid of the common man and given the masses any sort of power it makes sense. In a sort of strange landed-gentry, elitist sort of way.

Esp. since the militia wasn't just the masses, but free white males. Who knew that the founding fathers so feared free white males?

Doesn't jibe with the rest of the Constitution, does it? Perhaps you should figure out what "well-regulated" meant at the time and come up with a coherent parsing of the sentence. There is one. Or maybe the Congress had a bit too much rum in them when they wrote this. (And then couldn't the same be said about their state of inebriation for other amendments?)

To allow them to have whatever, without restrictions is counter productive. It helps for all to have similar types of armament, for training purposes and for actual fighting. And then there are similar ammo size and type being helpful, so if some ran out of ammo, others could share. So that necessarily includes regulating the firearms themselves. The firearm being regulated, for not only being allowed, but mandatory for uniformity.

Besides the Founding Fathers did NOT have, nor could afford, nor did they even want a standing army. The best armament of the day was muzzle loaders. Semiautomatic, let alone full automatics, were but pipe dreams, even if they could conceive of such. Things change. The regulations must change to keep up.

In other words, regulating the people, the militia, necessarily means regulating their firearms also.

It makes a difference in the logic. The phrase "a well-regulated militia" becomes a superior clause and thus the subject of the phrase "shall not be infringed. The other two clauses become subordinate, thus are modifiers of the superior clause. In other words, the sentence could be written without the two subordinate clauses.


http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

Otherwise you're creating a DU account just to insult people

Everything being proposed relates to regulation.

They had no conception of the word "regulations" as we now use it.

Case law has upheld regulation of access to guns.

I wrote an article about it for my law school's law review. But that was not the subject of my post.

Historian Edmund Morgan argues that the purpose of the Second Amendment was to enforce control over slaves, which would render it unnecessary today.

I didn't know that.

and Professor Emeritus at Yale. http://en.wikipedia.org/wiki/Edmund_Morgan_(historian)

Do you know what history is? We're supposed to believe your oblique reference to the meaning of the Second Amendment and not a prominent historian's? Why is that?

I do research from as many sources as I can and then use my education and experience to draw a conclusion. If you wish to take the "word" of one person for your thoughts go for it.

You'd have loved it. You couldn't be more transparent. You president your hapless statements as absolute fact and refuse to consider hose that challenge your gun worship.
Your insult is absurd and self-serving. It's also rhetorically weak.

That is also very transparent.

but I didn't make the pretense of doing otherwise or insist you are "taking the world of one person." Additionally, as a lawyer you don't have the educational background to develop sound historical analysis, no more than I have the background to argue a case in court.

And most laymen could present a decent case in court if they weren't hog tied by the rules of evidence which is purposely technical.

There are so many guns out in circulation that any bans would probably be totally ineffective.

We need to concentrate on regulating the transfer of guns from one individual to another, and on requirements for keeping weapons locked up and safe.

[link:http://www.theatlantic.com/magazine/archive/2012/12/the-case-for-more-guns-and-more-gun-control/309161/?single_page=true|

That very gun nut propaganda piece was the straw that broke the camel's back for me and caused me to cancel my subscription.

social legislation of any kind will take place until our criminal pay-to-play political finance system of legalized bribery and extortion is abolished.

I'm just waiting for his next BS about the 21st Century plan by the UN to eliminate golf courses.

You've got yet another brain-dead hyper-conservative politico to do your bidding. What's that you say? Being rabidly pro-gun is a "liberal" stance? Bullshit. You're known by the company you keep---and your long-time company really sucks.....

Regulation permitted.
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: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast 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

I believe my right to exist trumps the second amendment. I am pro choice in a lot of things, including guns. But the 2nd talks about a well regulated militia, and as such any gun controls are constitutional in regulating the militia, ESPECIALLY if one is a member of the NRA, definitely a militant group.

It took years of protests by auto industry and thousands of lives lost before we got seat belts in cars. It took years of poisoning the public with tainted food before we got regulations to stop illegal, greed in COMMERCE. It has taken far too long to get some reasonable gun ownership and safety rules on the books. It is not reasonable in a civilized society for individuals to own MILITARY GRADE WEAPONS that can be object of mass murder.
ATF does not have a director. That is dereliction of duty on part of the US SENATE. It is a national disgrace that CONGRESS has weakened our govt at home, and USE our national strength to dominate world politics and markets, not for the many but for the few.
And remember, regulations come about because people's abuse or misuse of duty, authority or property that it interferes with the commonwealth. GUN ownership must not trump right to life and in far too many instances, it is the misuse of FREEDOM to own guns that has led to the need to regulate the ownership of guns.

To remove the rights of millions of lawful citizens because of the action(s) of a select few?

Using that reason, why don't we ban alcohol?

Why haven't we already banned it?

Yeah, a few go out, get drunk and plow into crowds killing many.

We can stop this is we just banned alcohol.

Or better yet...CARS, lets ban cars, because if we do we could save 10,000+ people this year from auto accidents.

and then I will vote against him again. I'm a Republican and this nasty piece of work only replaced another Teapublican just a tad less dispicable. I live in teabilly hell.

It's not worth it trying to "Occupy the GOP" anymore...you know which party to re register to.

Stevenson, Rockrfeller without Attica and death sentences for drug dealong, Nixon without the war and Watergate, Eisenhower watch out for the military/industrial complex sort of Republican. Bill Clinton was a good 'Republican', actually. The President is more center right - close to Republican in a lot of ways. National Healthcare has a plan every conservative Republican should actually be supportive of, (I'd like something a lot more like France). I think Teapublicans ans teabillies are on borrowed time. Look at how Fox has toned down and still lost all sorts if audience. Hannity might well be cancelled.

Was the Sandy Hook Elementary School Massacre just ANOTHER Second Amendment-in-Action Experience? That it asshole? As another here on DU recently said:

Gun Nuts will NEVER have a rational discussion about gun laws & the 2nd Amendment. They do three things in the wake of every act of gun violence:

1. Claim it's not about guns.

2. Argue that the solution is to arm everyone.

3. Go into hiding.

Those positions are not conversation starters.

--------

Time to turn down the "heat" before we have more Sandy Hook Elementary School Massacres. Are you gun nutters listening or are you busy fashioning cowboy hats out of toilet seats and getting ready for your own weird end???

So your brilliant solution take away all the guns?

First off, how are you gonna do that?

Secondly, you do realize that only criminals will have guns.

They do not follow the law, they never have.

THEY ARE CRIMINALS.

You can't pass legislation on morality. It does not work that way.

Start with our nation's horrible mental health system, our nations poverty and our lack of education.

That is how you fix these problems. Not by taking away the arms of 99% of the population.

assault-style weapons fly off the shelves at gun shops. You can't even find high-capacity magazines in the Minneapolis area right now. We don't reduce the number of these types of guns by drawing attention to them and talking about banning them. We only increase the paranoia and increase sales. Ask ANYONE who works at a gun store if what I'm saying is true. They'll all say yes. I have a good friend who monitors this stuff and talks about it all the time. He visits gun stores every week and checks the stock of various critical items... things are going crazy right now. He was a gun dealer during the early period of the last assault weapon ban and he made money hand over fist, and the number of guns that sold BEFORE ENACTMENT as a result of the laws far exceeded the number of assault weapons and high-capacity magazines that would have naturally sold over that 10 year period of the ban. In addition, many new devices were created by gun makers that caused the laws to be thwarted in various ways using aftermarket devices. Sales of these things always go UP when we do this stuff.

If we're going to get serious, we'll have to make ownership of assault weapons illegal. Period. Which means the government will be coming for our guns. Or your guns, rather. I own a bb gun and a 20 gauge shotgun which I keep at a log home in the middle of nowhere for shooting skeet.

You're a law-abiding citizen.

You should have the right to whatever semi-automatic rifle, pistol, or shotgun you want for self defense.

It really is that simple.

I don't want what someone else says is "adequate" for SD/HD. I want the best available tool for the job, whether it be a shotgun, a rifle, a pistol, a knife, a moat around my house. etc.

This is America. Be proud that you have the right to choose what you feel is best to defend you.

Just don't tell your neighbor what he can and cannot defend himself with.

How is that fair and justified?

You're a law-abiding citizen.

You should have the right to whatever semi-automatic rifle, pistol, or shotgun you want for self defense.

It really is that simple.

I don't want what someone else says is "adequate" for SD/HD. I want the best available tool for the job, whether it be a shotgun, a rifle, a pistol, a knife, a moat around my house. etc.

This is America. Be proud that you have the right to choose what you feel is best to defend you.

Just don't tell your neighbor what he can and cannot defend himself with.

How is that fair and justified?

You shouldn't have the right to whatever semi-auto rifle, pistol, or shotgun you want for self-defense. I say that because I don't think anything is simple when it comes to gun ownership and gun control. You can trot out simplistic statements like that but you should expect others to disagree and challenge your comments.

How is it fair and justified to tell my neighbor what he can and cannot defend himself with? It's fair and justified for society to impose all sorts of controls and limits on what people can do, including what kind of weapons they're allowed to own. We're having the debate about guns because little kids and other people are getting killed at alarming rates. Something needs to be done, even if we have to move at a slow pace and make incremental changes.

The right to bear arms is protected by the Second Amendment, but it is not absolute and lawmakers have introduced a series of common-sense restrictions. For instance, in the Heller case, the Supreme Court found that while a handgun ban is not constitutional, because handguns are in “common use,” a machine gun is not and therefore could be restricted. An assault weapon equipped with a clip that can shoot hundreds of rounds would likely fall into the same category. As conservative Justice Antonin Scalia wrote, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

In 2011, the D.C. Circuit Court upheld a law prohibiting large-capacity ammunition magazines and assault weapons.

There were no serious challenges to the Assault Weapons Ban that expired in 2004, though in 2002 an appeals court unanimously upheld the law.

Source: ThinkProgress

" said she wouldn't support broad gun control laws. told ABC's 'This Week' that gun control plans reportedly being considered by the White House are "way in extreme."

http://www.huffingtonpost.com/2013/01/06/heidi-heitkamp-gun-control_n_2420775.html

daughters attend public school.

must keep the gun manufactures in riches

for any individual to own or possess firearms.

Please tell me where you have the right to say that?

The right to freedom of speech applies to the masses, not individuals.....

Oh wait....it does apply to individuals.

Just as the 2nd Amendment does apply to citizens.

You have the right to freedom of speech....and you have the right to protect that freedom of speech too.

Isn't that great?

GOP politicians after the tragedy, because THEY knew better, than PISS OFF the NRA.

could mean the right to have in your possession a club.
here is what they all like to ignore. Mass murder of children. I am truly offended when I have to endure some chicken brain neo con gun nut asshole tell me about their love of cold steel and things that go bang. I out grew the fascination at about the age of 9. We have much more interesting inventions since we tackled the operation of hurling lead globs through the air. How many more will have to be massacred before we decide to do something about it?
Civilization is being held hostage by greedy old men who use an ignorant heavily armed minority to terrorize the other 95 % of the population. I even keep hearing the old lie that the 2nd amendment was intended to give the people the ability to rise against their own government ! I hear that crap all the time. Its hard not to have to hear that crap. They are screaming it on every channel ! Its a lie.
Now they are purposely exacerbating the problem by suggesting the solution is to arm everyone.
I want to rip my hair out when I hear this crap.

After all the amendment clearly says that arms are to maintain a militia for defense so have the government form and run such a thing and only allow those who are in it to have the automatic weapons.
The government could then just add what rules are needed so as keep the truly crazy from joining the militia.

A militia does not require military or government training. The government is also not responsible for supplying the militia with any supplies either. The government does not have to provide any direction or oversight to a militia.

The well regulated part merely means they are not doing things that would otherwise be illegal.

and would be inducted formally into the US military. A militia really isn't defined at the federal level, which is why we have all this controversy.

The term militia is fairly irrelevant today because of the voluntary nature of such an organization. The well regulated portion is also pretty irrelevant as well because of the existing laws. You have to follow the law and not rob, rape, pillage, plunder, murder, etc. and in doing so you are "well regulated". Militia members also have to follow existing laws concerning firearms just like everybody else.

The second amendment boils down to whether we have a right to revolt against an oppressive government or not. What would the people here on DU do if the right wing got complete control of all three branches of government and imposed some really nutty stuff?

The nature of weapons has changed a lot and will continue to change as technology progresses. In 50 years I imagine we will laugh at the things we call assault weapons and weep at what we have created. Prices are really dropping on 3D printers and computer aided machining, making any ban hard to enforce in the future and an arsenal a few keystrokes away.

might attempt to take away the rights of Americans. Power flows up from the people, not down from the government.

As such it was necessary for citizens to be able to keep themselves armed. Guns were also necessary to hunt for food and for personal protection, especially on the frontier.

the constitution as those times changed which they have, guns now are not single shot for example but rather they can pump out far more bullets and at greater accuracy.

And by Constitutional Amendment change is the only way this matter will be resolved to the satisfaction of all concerned.

10 USC § 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

http://www.law.cornell.edu/uscode/text/10/311

Accuse me of NRA or right-wing talking points all you want, but it's currently FACT, codified in Federal law.

But I've been wrong before.

He would be cheap and you don't have to send him back to Texas

No right to have a device that could blow away principals, teachers, first graders, and, yes, any police officer or security guard present.

Contact info for Cruz:

B40B Dirksen Senate Office Building
Washington, DC 20510
Phone: 202-224-5922

But this is right in keeping with his arrogance. The GOP must be sooooo proud. Texas, meanwhile, wallows in shame.