Feinstein’s Defense of Her ‘Assault Weapon’ Ban: I Feel, Therefore I Legislate

Senate Judiciary CommitteeSenate Judiciary CommitteeThe
between Sen. Ted Cruz (R-Texas) and Sen. Dianne
Feinstein (D-Calif.) about the constitutionality of her proposed
ban on “assault weapons” at yesterday’s Senate Judiciary Committee
meeting nicely illustrated a
familiar pattern
in which people who favor new gun restrictions
respond to challenges with
emotion-laden non sequiturs
. Feinstein, who admonished Cruz for
treating her like “a sixth-grader,” later
CNN’s Wolf Blitzer, “I just felt patronized. I felt he was
somewhat arrogant about it.” If you watch the video at the end of
this post, you can judge for yourself whether Cruz seemed
patronizing or arrogant. But the question he posed was perfectly
fair: Given that the Second Amendment protects an individual right
to arms, just as the First Amendment protects an individual right
to freedom of speech and freedom of the press, isn’t telling people
they may not possess certain guns analogous to telling them they
may not possess certain books? In both cases, people retain
most of the right guaranteed by the Constitution, but
in the First Amendment context that has never been deemed enough
for a restriction to pass muster. Feinstein proudly cites the list
of more than 2,000 gun models specifically exempted from her ban as
evidence that it does not violate the Second Amendment, which Cruz
suggested is rather like publishing a list of officially permitted
titles as evidence that a book ban does not not violate the First

Feinstein could have responded by citing a constitutionally
relevant distinction between the guns she wants to ban and the guns
she would allow, but since
there is no such distinction
she resorted to bluster:

Let me just make a couple of points in response. One, I’m not a
sixth-grader. Senator, I’ve been on this committee for 20 years. I
was a mayor for nine years. I walked in. I saw people shot. I’ve
looked at bodies that had been shot with these weapons. I’ve seen
the bullets that implode [sic]. In Sandy Hook, youngsters were

Look, there are other weapons….I’m not a lawyer, but after 20
years I’ve been up close and personal to 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.

And so I, you know, it’s fine if you want to lecture me on the
Constitution. I appreciate it. Just know I’ve been here for a long
time. I’ve passed on a number of bills. I’ve studied the
Constitution myself. I’m reasonably well-educated, and I thank you
for the lecture.

Incidentally, this [bill] does not prohibit—you used the word
prohibit—it exempts 2,271 weapons. Isn’t that enough for
the people in the United States? Do they need a bazooka? Do they
need other high-powered weapons that military people use to kill in
close combat? I don’t think so. So I come from a different place
than you do. I respect your views; I ask you to respect my

Respecting Feinstein’s views is a tall order, given
the disjointed, utterly illogical way in which she defends them.
Much of her response was not a response at all; it merely
reiterated Cruz’s point that her bill prohibits (yes,
prohibits) certain guns while exempting others. His
question was why that approach is acceptable in the Second
Amendment context when it wouldn’t be in legislation impinging on
First Amendment rights. As for explaining the distinction between
prohibited and permitted weapons, Feinstein simply repeated the
long-running lie that there are functionally important differences
between the two categories, when in fact her criteria are
mainly cosmetic
, having little or nothing to do with a gun’s
usefulness to a mass murderer or ordinary criminal. She also
falsely asserted that semiautomatic “assault weapons” are the same
as the machine guns carried by soldiers and even suggested they are
akin to bazookas.

It is not clear what “three exceptions” Feinstein had in mind
when she referred to
District of Columbia v. Heller
, the 2008 decision in which
the Supreme Court recognized that the Second Amendment protects an
individual right to arms. Writing for the majority, Justice Antonin
Scalia did say that “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.” Those are three things, but Feinstein’s
bill has nothing to do with any of them. Scalia also mentioned “the
historical tradition of prohibiting the carrying of ‘dangerous and
unusual weapons.'” But so-called assault weapons, which are among
the most popular rifles in America, are not unusual, and Feinstein
has never explained in what sense they are especially
dangerous—why, for example, a perfectly legitimate gun become
an intolerable threat to public safety when you add a barrel shroud
or an adjustable stock. In fact, a general principle endorsed by
Heller—that the Second Amendment applies to weapons “in
common use for lawful purposes”—implies that Feinstein’s bill,
as Cruz suggested, is

The rest of Feinstein’s argument takes the following form: I’ve
seen people shot; therefore my bill is constitutional. Or as she
put it to Blitzer, “When you come from where I’ve come from and
[seen] what [I’ve] seen, when [you’ve] found a dead body and put
your finger in bullet holes, you really realize the impact of
weapons.” A legislator who considers such experiences and
feelings to be a sound and sufficient basis for passing any law,
let alone a law that abridges a fundamental right, is a public
menace. Which is why this was the scariest thing Feinstein said
during her scolding of Cruz: “I’ve been on this committee for 20