A third measure to reform gun violence prevention passed the Senate Judiciary Committee Thursday along party lines, but not without bitter opposition from Republicans, who claimed that such a ban would violate the Second Amendment and analogized restrictions on guns to censoring books under the First Amendment.
Sen. Ted Cruz (R-TX) battered Democrats with questions about whether they would support restrictions on the First or Fourth Amendments he claimed were similar to those an assault weapons ban would impose on the Second:
I pose to the senator from California [Sen. Diane Feinstein], would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would she consider it constitutional for congress to specify that the first amendment shall apply only to the following books and shall not apply to the books that congress has deemed outside the protection of the Bill of Rights?
But Sen. Charles Schumer (D-NY) obliterated his argument by noting the analogous actual restrictions on the actual First Amendment:
In reference to the question my colleague from Texas asked, would you limit books? Would you name specific books? Yeah. It’s constitutional within the ambit of the First Amendment to eliminate child pornography. And we have lots of laws that are very explicit about that. Very explicit. That are constitutional, that have been upheld as constitutional. Similarly, you can’t falsely scream fire in a crowded theater. Similarly, we have libel laws. Every one of these is an impingement on the sacred First Amendment, upheld as constitutional. There are reasonable limits on each amendment, and I think it is anomalous, to put it kindly, for either side to interpret one amendment so expansively and another amendment so narrowly that it just doesn’t add up because your interpretation of the Constitution should be consistent.
Sen. Sheldon Whitehouse (D-RI) then dealt the final blow with a direct comparison between First and Second Amendment restrictions both intended to protect public safety:
It is hard to imagine that it would be a violation of the First Amendment for somebody to yell fire in a crowded theater but it’s not a violation of the Second Amendment to prevent somebody from bringing a hundred-round magazine into a crowded theater in a Aurora, Colorado.
Sen. Mike Lee (R-UT) made a different constitutional argument, noting “we’ve heard testimony there are some 4 million weapons” banned by the bill. He cited the U.S. Supreme Court’s 2008 opinion in D.C. v. Heller to assert that that 4 million weapons necessarily “qualifies as common use” as defined by the decision and “cannot be banned.”
While Justice Antonin Scalia’s majority opinion did strike down a ban on weapons in “common use,” he specifically stated that the Constitution allows bans on “dangerous and unusual” weapons. Lee failed to explain how the fact that manufacturers of “dangerous and unusual” weapons have manufactured so many has any bearing on whether are not they meet the definition of “in common use.”
Whitehouse lamented the “clear” intractable Republican opposition to the assault weapons ban and suggested that a separate vote on the high-capacity magazines element of the bill would have more success in passing the Senate. The Senate judiciary Committee has already approved measures to expand background checks and reduce gun trafficking, but they all face significant obstacles in both the full Senate and the House.