Ted Cruz is earning his paycheck as a Senator from Texas. Earlier today, Cruz and Diane Feinstein squared off in the Senate Judiciary Committee meeting. Cruz, very respectfully addressed the Senior Senator from California (Feinstein) and directly asked if she believed her current endeavor would be consistent with the context of the Bill of Rights if applied to the 1st Amendment only applied to those books Congress deemed OK or the 4th Amendment applying only to those individuals Congress saw fit to protect.

In response, Feinstein declared, “…I’m not a sixth grader.” The only thing she didn’t say was “look here you little whippersnapper…I’ve been doing this since you were in grade school.” But most importantly, she said the following, “…I’m not a lawyer. But after 20 years, I’ve been up close and personal with the Constitution. I have great respect for it. This doesn’t mean that weapons of war… And the Heller decision, clearly points out three exceptions. Two of which, are pertinent here…”

The three exceptions she’s talking about appear on pages 54 and 55 of the official opinion of the Supreme Court in D.C. v .Heller. Specifically, the Court stated, “Like most rights, the right secured by the Second Amendment is not unlimited…nothing in our opinion should 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.”

Now it is obvious that Feinstein plans to work under the premise that “laws imposing conditions and qualifications on the commercial sale of arms…” would be deemed Constitutional in the eyes of the Supreme Court. But, let me muddy the water even more with a caveat or footnote regarding the exceptions discussed above.  This footnote appears at the bottom of page 55 and reads as follows, “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” My suspicion is the Feinstein and others see this as wiggle room providing the regulatory authority to ban standard capacity magazines and semi-auto firearms.

The Court’s opinion goes on to state, “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” This part of the opinion, in theory and in the opinions of many legal experts, should protect standard capacity magazines and semi-auto firearms specifically because they are in “common use” for lawful purposes. The problem we face is that Congress could readily pass a ban anyway. Feinstein and others argue that semi-auto firearms and standard capacity magazines are NOT in common use for lawful purposes, or else Biden wouldn’t be telling you to go get a double-barrel shotgun. This is where calling your representative or senator becomes so important to preventing such a ban from becoming law. Because if it does, like the D.C. and Chicago handgun bans, it will have to go to the Supreme Court to be struck down or a new Congress would have to repeal it. Neither of these are easy roads and a great deal of damage will be done while the laws are in place. As the old saying goes, an ounce of prevention is worth a pound of cure.

-Gary