I never thought I would agree with anything that Ted Cruz says about guns, or anything that he says about anything else, for that matter. But I have to admit that I entirely agree with a statement he made about the 2nd Amendment in a fundraising appeal that he sent out last week. According to Daily Kos, the email quoted Cruz as saying that “the 2nd Amendment to the Constitution isn’t for just protecting hunting rights, and it’s not only to safeguard your right to target practice. It is a Constitutional right to protect your children, your family, your home, our lives, and to serve as the ultimate check against governmental tyranny — for the protection of liberty.”
As soon as this statement hit the internet, the usual scions of liberal respectability and proper discourse demonstrated their usual pique and concern, not the least a statement by the Editor of the New York Times Editorial Page, Andrew Rosenthal, who accused Cruz of promoting the “ridiculous” and “silly” idea that the 2nd Amendment was the handiwork of Framers who, according to Rosenthal, wanted to “encourage the idea of armed rebellion against the government.” And this guy’s running for President?
I have something to tell the Editorial Board of The New York Times. The fact is that what Crazy Cruz said about the 2nd Amendment is not only true, it happens to be the foundation upon which the Supreme Court based the 2008 Heller decision which gave Americans the inalienable right to keep a gun in their homes for self-defense. The law which came before the SCOTUS basically said that a resident of the District could only keep a handgun in his domicile if it were locked at all times, thereby not allowing the gun’s owner to use it for self-defense. Heller challenged this statute based on the idea that if he couldn’t use the weapon for self-defense within his domicile, then the 2nd Amendment right to private gun ownership was basically null and void.
What had always created confusion among jurists and scholars regarding the 2nd Amendment was the strange wording which divided the Amendment into two parts: the prefatory clause which says, “A well regulated Militia, being necessary to the security of a free State,” and the operative clause which continues, “the right of the people to keep and bear Arms, shall not be infringed.” One side had always argued that the wording tied, indeed qualified private gun ownership to be a function of military service; the other side argued that owning a gun was a fundamental right that was not in any way dependent upon military service at all. The 5-4 majority opinion in Heller written by Associate Justice Antonin Scalia, came down on the side of a private right.
If you read Scalia’s decision closely, however, it turns out that the idea of using guns for personal defense appears in many local statutes and legal commentaries contemporaneous with the drafting of the Bill of Rights. It also turns out that there was considerable concern in the post-Revolutionary period about whether the national government should raise and support a standing army or whether the national defense should be left to citizen’s militias raised by the individual states. But what comes out in reading the numerous sources cited by Scalia to justify gun ownership on the basis of self-defense is that, overwhelmingly, the notion of self-defense was considered first and foremost to be defense against government tyranny, not using a gun to shoot the thug who tries to break down your back door.
Not only is Cruz correct when he says that the folks who wrote the 2nd Amendment were looking for a way for citizens to protect themselves from governmental abuse; the writings and commentaries of the period bear him out. The fact that Scalia took those writings and gave them a modern twist says a lot more about his agenda than whether Ted Cruz understands the Constitution or not.