A Time for Truth: Reigniting the Promise of America

by Ted Cruz

  When I had the opportunity to speak again, I noted that no one doubted the sincerity or passion of Senator Feinstein’s antipathy toward guns, but she had chosen not to answer my question. Indeed, she had said nothing about whether Congress can pick and choose which other protections in the Bill of Rights to respect.

  Later at the hearing, Feinstein did address this question—kind of. She said, “Congress is in the business of making law. The Supreme Court interprets the law. [If] they strike down the law, they strike down the law.”

  That answer too was very instructive—and exemplifies one of the biggest problems in the federal government. For far too long, Congress has passed legislation with no one in the Senate once asking what should be the preliminary question: Do we have the constitutional authority to enact this bill?

  Feinstein’s comment was reminiscent of a comment from then–House Speaker Nancy Pelosi, who responded to a question about the constitutionality of Obamacare by asking in disbelief, “Are you serious? Are you serious?”

  Members of Congress don’t entertain thoughts about whether or not their legislation is constitutional for several reasons. For one, they believe and behave as potentates who believe that every crisis, every national headline, demands federal legislation that will impress a subset of their constituents. It’s constitutional because they say it is. And if it isn’t, then let the Supreme Court deal with it later—long after they’ve had their press conference and TV interviews trumpeting their great legislative success.

  Senator Schumer and Senator Dick Durbin of Illinois both tried to jump in to help their colleague. Schumer airily observed that I just didn’t understand what the Supreme Court had decided in Heller, the case that confirmed that individual Americans have a right to firearms. I’ll admit, I found this mildly amusing because, unlike Chuck Schumer, I had been an actual litigant in Heller, representing thirty-one states as amici before the Supreme Court. Indeed, I had presented oral argument before the D.C. Circuit in the companion case to Heller.

  After I described Heller’s holding to Schumer, he went back to a favorite staple of his: discussing child pornography. Whenever anyone suggests that the Constitution prohibits federal authority on a particular matter, Schumer routinely bellows something to the effect of “Child pornography! Rights are not unlimited! We can prohibit child pornography!” His point is that even though watching child pornography could in some people’s interpretation be an exercise of free speech, the Supreme Court has upheld legislation prohibiting it. In Schumer’s view, because child pornography can be banned, the federal government has carte blanche to violate every part of the Bill of Rights.

  What Schumer apparently missed is that child pornography is not an “exception” to the First Amendment that unelected judges created out of whole cloth. For centuries, beginning with the founding generation that ratified the Bill of Rights, obscenity has been understood to be outside the First Amendment’s reference to the “freedom of speech.” At common law, and in the original understanding, the words simply did not encompass child pornography. That is why it can be prohibited.

  When I first asked Senator Feinstein my question, I never imagined it would cause fireworks. It was the kind of ordinary question any lawyer litigating before the Supreme Court would expect to be asked while presenting a constitutional argument. If someone makes an argument that a particular piece of legislation is permissible under the Constitution, the justices will naturally—and predictably—ask whether that same argument would apply to other provisions of the Constitution. That was the world I knew.

  But that was not the world I found in the Senate, and I learned this lesson when my exchange with Feinstein became something of an Internet sensation, with nearly a million views online. In the U.S. Senate, senators are not used to actual debate. They are unaccustomed to finding their positions questioned or challenged in any meaningful way. Instead, they expect talking points punctuated by elaborate pleasantries and faux amity, where everyone is a “distinguished gentleman from New York” or an “esteemed colleague from California.”

  The exaggerated decorum is rendered all the more ironic by the fact that, in the two years I’ve served in the Senate, this eight-minute exchange with Senator Feinstein constitutes the most words she has ever said to me. Indeed, for months afterward, whenever I ran into her in the elevator, we’d have the following exchange:

  “Hello . . . tough guy.”

  “Diane, I’m all sunshine and smiles.”

  “Is that . . . what your wife tells you?”

  Three times, we’ve had that exact same exchange, word for word. It’s very odd. And somehow, every time she greets me, I hear the words from Seinfeld, “Hello . . . Newman.”

  In any event, the Second Amendment matters far too much for us not to take it seriously. There are two critical reasons.

  First, historically, the ability of the people to defend themselves has been a critical precondition to securing liberty from monarchs and tyrants. For that reason, those in government power always want to disarm the populace, because an unarmed populace is subservient to the whims of their masters. When the British Crown became repressive, the American colonists did not throw off the yoke of tyranny by relying on impassioned speeches, pamphlets, or books. Instead they shouldered muskets, launched a revolution, and defeated the mightiest army on the face of the earth. Had the colonists been weaponless, we would likely be speaking with a British accent right now.

  Second, the right to keep and bear arms protects the fundamental right of each and every one of us to protect ourselves, our family, and our children from imminent physical harm. If somebody enters my home seeking to injure my wife or my daughters, they will encounter a very direct exercise of my Second Amendment rights.

  It’s very hard for Hollywood celebrities to understand this. They have no need to own a firearm, because typically they retain armed bodyguards who travel with them. Likewise, other liberal elites living in wealthy suburbs have the resources to hire out their self-protection to the local police through higher property values and property taxes. The threat to their lives, to their property, and to their families is minimized.

  But those in poverty don’t have that luxury. They are often surrounded by crime, traveling alone late at night, and the Second Amendment is a vital tool to protecting their safety.

  That’s especially true when it comes to women, who often lack the physical size or strength of a violent attacker. A firearm allows a woman to equalize the playing field, and protect herself and her family.

  This was driven home to me when Heidi and I bought our first home in Austin. A small house near downtown, it had one story, with our bedroom window overlooking the driveway. My work sometimes required me to travel, which on occasion would leave Heidi sleeping at home alone. Worried that an intruder might come through the window, I placed a hatchet beneath our bed, and started to tell her to grab the hatchet if anything happened.

  As I was saying this, it struck me . . . this was stupid. Heidi is five foot two. The last thing I wanted was for my beautiful, petite wife to be trying to swing a hatchet at a large, menacing robber coming through the window. The next day, I went and bought her a .357 Magnum revolver, which we kept by our bedside.

  When it comes to violent crime, I will yield to no one in how strong we should stand for the protection of the innocent. But we do not prevent crime by robbing law-abiding Americans of their constitutional liberties. Instead we target violent criminals and come down on them like a ton of bricks.

  It’s also worth noting that gun control laws are notoriously ineffective. Facts matter, and cities with the strictest gun control regularly have among the highest murder rates. Thus, D.C. and Chicago have for decades had horrendous crime rates, even though both have been at the extreme vanguard of taking away their residents’ gun rights. In contrast, Texas cities like Dallas and Houston and El Paso—where citizens are often armed and able to protect themselves—have murder rates that are a fraction of Chicago’
s and Washington’s.

  Similarly, Australia recently followed the path of President Obama and the Democrats, responding to a terrible shooting by banning handguns altogether. The results have been disturbing. Since banning handguns, sexual assaults and rapes in Australia have skyrocketed, because there are few things a criminal likes better than an unarmed victim.

  When the president’s gun control bills moved to the Senate floor, the battle entered a new phase. Democrats were still confident they could force through their proposals. But they didn’t count on one thing: the power of the American people.

  We had seen the impact of the grassroots getting energized in the Rand Paul filibuster on drones. Now we were going to attempt to use the same force to change the balance of power on gun rights. As the Senate was preparing for a two-week recess, I joined with Mike Lee and Rand Paul to send a simple four-sentence letter to Harry Reid. It informed him that we intended to filibuster any legislation that undermines the Second Amendment right to keep and bear arms.

  That letter was met with derision by the Democrats, by dismay from the Republican leadership, and by denunciation from their friends in the media. Indeed, the Wall Street Journal promptly editorialized how terrible it was that we were making this stand on the Second Amendment.

  Our letter accomplished two things. First, it slowed the process down, which gave the American people time to engage. Second, it shined a powerful light on what the Senate Democrats were trying to do.

  Over the next two weeks, my Senate colleagues returned to their home states, where they encountered their constituents. Much to their annoyance, their constituents cared deeply about protecting their constitutional rights. One senator after another received angry demands from constituents, who wanted to know why their senator wasn’t standing with Rand and Mike and me in fighting for the Second Amendment.

  Unsurprisingly, senators did not like being asked that question. Rarely do elected politicians in Washington expect to be held accountable. Over the course of the next two weeks, one senator after another reached out and asked us to add their name to that letter. Three grew to 17. And then 17 names grew to 31 votes on the first procedural vote against taking up the gun control bills.

  Since we needed 41 votes to stop the legislation, the critics immediately declared our effort a failure. But wars, whether in politics or the military, are not usually won in the first skirmish.

  Those 31 senators created a whip count—a public record of the 31 senators who would stand with the Second Amendment and the 69 who did not. And after that first vote, Heaven and Earth descended upon those senators who, when at home, tell their constituents they stand for the Second Amendment and yet in Washington, vote against protecting it.

  Suddenly the tide turned. As senators began receiving hundreds, then thousands, of calls and letters from their constituents, the political calculus changed. For Republicans, acceding to the efforts of the Democrats to strip away our Second Amendment rights suddenly became a far more risky proposition. And when the day came for the gun control proposals to be voted on, every single one of President Obama’s proposals to undermine the Second Amendment was voted down on the Senate floor.

  An integral part of defeating the president’s antigun agenda was developing a strong, viable alternative. I sat down with my friend Senator Chuck Grassley, then the ranking member on the Senate Judiciary Committee. Together we crafted a bill that became known as the Law Enforcement Alternative. With provisions to increase funding for school safety, reporting requirements for mental illnesses, and prosecution of felons who try to illegally buy guns, the Grassley-Cruz legislation became the key alternative to the president’s antigun proposals.

  In the course of debating the issues, much of my energy was spent simply describing the baseline facts. As John Adams famously said, “Facts are stubborn things.” And there were three facts, in particular, that the Democrats did not want to address.

  Fact #1: In 2010, over [48,000] felons and fugitives tried to illegally purchase firearms. Of those, the Obama administration prosecuted only [44] of them. [44] out of over [48,000]. In my view, that is wholly unacceptable. When the Democrats brought in antigun advocates, including police chiefs or U.S. attorneys appointed by the Holder Justice Department, I asked them if it was a top priority to prosecute felons and fugitives trying to illegally buy firearms. Repeatedly, they said yes. Then I asked why in 2010, had they prosecuted only [44] out of [48,000]. They had no good answer. One of the witnesses responded dismissively, “We don’t have time to deal with paperwork offenses.”

  From my perspective, if a convicted felon is trying to illegally purchase a firearm, I want to know why. Rather than having the federal government go after law-abiding citizens, we ought to come down on the murderers and rapists trying to illegally buy guns.

  Fact #2: The prosecution of gun crimes under the Obama administration had dropped [30] percent. Whereas the Bush administration had made going after violent criminals who use guns a top priority, the Obama administration put far less emphasis on doing so. And the data demonstrate the consequences.

  Fact #3: President Obama reduced the funding for school safety by more than $300 million. That school safety funding might well have gone to providing security to prevent the crazed gunman at Sandy Hook from taking the lives of those little children. But the Obama administration had other priorities.

  Each of these facts reflects an ongoing failure of the Obama administration: They have a hard time distinguishing good guys from bad guys. That failure impacts their foreign policy—where we’ve been ineffective going after terrorists, while at the same time not respecting the privacy rights of American citizens—and it impacts domestic policy, where they’ve been far more concerned with stripping the Second Amendment rights of law-abiding citizens than with targeting enforcement efforts at violent criminals.

  The Grassley-Cruz bill addressed each of these failings, directing law enforcement resources to stop violent criminals from using guns to harm others. It created a gun crime task force, to prosecute violent gun criminals and also felons and fugitives trying to illegally buy guns. It directed resources to helping states report mental health records to the federal background check system. And it enhanced school safety funding, to protect vulnerable children. As a result, it garnered more bipartisan support than any other comprehensive piece of gun legislation—and far more support than the 40 votes Dianne Feinstein’s so-called assault weapons ban received. With votes from 52 senators—9 Democrats and 43 Republicans—Grassley-Cruz could have become the law of the land—if Harry Reid and his Democratic allies had not filibustered it.

  Reid and the Democrats didn’t object to any of the bill’s provisions. None of them made a single argument on the merits. Instead, they made clear that the entire post-Newtown gun debate had all been a political exercise. It had been an effort to get their big-money donors excited to write checks to the Democratic coffers. Harry Reid’s view was “If we can’t get what we want, nothing will pass the United States Senate.”

  On the evening we were voting on these proposals, Vice President Joe Biden made an appearance on the floor of the Senate. Although he’s president of the Senate, Biden rarely appears on the floor. His vote matters only if there’s a 50–50 tie, which has not occurred in the time I’ve been in the Senate. But he was there that night because he was prepared to gavel in from the president’s chair what he saw as a historic victory for the left, stripping away the Second Amendment rights of the American people.

  Earlier that week, Biden had been calling senators, trying to whip votes. He was reported to have said repeatedly, “Why on earth do you care what a freshman senator is saying?” But he didn’t understand; it wasn’t what I was saying. That didn’t matter. What matters is what happens when the grassroots holds elected officials accountable.

  Before the votes began, I was standing on the Democrat side of the chamber, visiting with Senator Joe Manchin. Manchin, a West Virginia Democrat, had pushed hard for one
of Obama’s gun control provisions. He’s a good guy—genuinely likable and down-to-earth—and I was complimenting Joe on how he had conducted the debate, taking the high road and not engaging in personal insults or attacks. While we were talking, Biden came up behind us and rested his hands on my shoulders. He turned to Manchin and said ruefully, “Joe, there’s nothing more dangerous than a smart Republican.”

  As it turns out, Biden’s vote was not needed that night. The American people had risen up, and engaged mightily. And not a single bill to limit the gun rights of law-abiding Americans passed the Senate. Democrats were shell-shocked. They had expected an easy victory. But the Second Amendment had once again survived demagoguery and fearmongering, for one reason: the power of the grassroots.

  * The rescue operation inspired a novel and an NBC TV miniseries, On Wings of Eagles. Perot was portrayed by actor Richard Crenna.

  CHAPTER 9

  The Obamacare Battle

  At forty-two, with close-set eyes and a full thick brown beard, Sherman Booth was one of the most prominent organizers of a fledgling political party in Wisconsin. They called themselves Republicans. He was an organizer, a troublemaker, a deeply passionate adherent to principle, and in 1854 he was under arrest.

  The scourge of slavery was a deep-rooted vexation to the former Yale student, who during his time at the university had taught English to some of the African slaves who had forcefully taken over the slave ship Amistad. A prolific writer, Booth had regularly pressed his case against slavery ever since, most recently in the pages of the Milwaukee Free Democrat, of which he was the publisher.

  Prominent in his pages these days was the case of Joshua Glover, a Missouri slave who’d escaped from captivity and sought refuge in the Wisconsin city of Racine, known to be friendly to the abolitionist cause. When Glover’s slave owner learned of Glover’s whereabouts, he filed suit to recover his “property” under the aegis of the notorious Fugitive Slave Act of 1850.