One Vote Away: How a Single Supreme Court Seat Can Change History

by Ted Cruz

  The brief was signed by then-U.S. Solicitor General Paul Clement, a friend and a very talented lawyer who had previously clerked for Judge Laurence Silberman on the D.C. Circuit and then for Justice Antonin Scalia on the Supreme Court. Readers will remember Paul from the previous chapter, from the oral argument in Van Orden v. Perry.

  It so happened that Judge Silberman had authored the D.C. Circuit opinion in Heller—a jurisprudential tour de force that carefully outlined the textual, structural, and historical reasons that the Second Amendment protections were both real and meaningful. But now, his former clerk, Paul Clement, had signed a brief advocating a standard of review that would have gutted Judge Silberman’s opinion. From multiple accounts in Washington, Silberman was furious. I don’t think the brief necessarily reflected Paul’s personal opinion, but it was the sort of “cut the baby in half” legal reasoning that can occur when a Department of Justice is trying to make everyone happy all at once.

  Texas decided to take a more conservative approach (as we often did during the years of the Bush administration). We were not only going to defend the Second Amendment as an individual right to keep and bear arms, but we were going to advocate for robust judicial scrutiny for laws infringing on that right. In other words, we argued that the Second Amendment is real and that it protects a concrete right that matters for millions of law-abiding patriots across the nation.

  While the Supreme Court was considering Heller, I recall a conversation I had with members of the Washington Post editorial board. The Post, like the New York Times and most other papers, leans left—sometimes very much so. I spent about thirty minutes on the phone arguing to the Post editorial board that they should support Mr. Heller. The reason, I argued, is that they—along with every other journalist—should be committed to a robust First Amendment. To a First Amendment, that is, that vigorously protects freedom of speech and freedom of the press, which ensures their ability to carry out their vital function. And I argued to the editorial board that if they wanted to defend a robust First Amendment, they should be disquieted by an effort effectively to read the Second Amendment out of the Constitution. That if courts were empowered to take away one amendment, they could very well try to erase other amendments as well. And so, even if the editorial writers might support gun control as a policy matter, they should be adamantly against the Court’s eliminating individual rights expressly protected in the Bill of Rights. Astonishingly enough, the Post agreed with me and wrote an editorial in support of the constitutional right to keep and bear arms. It was no small victory.

  When the decision came down, Dick Anthony Heller prevailed by a vote of 5–4. The majority opinion was authored by Justice Antonin Scalia, and it remains perhaps the finest opinion Justice Scalia ever wrote.

  The Court upheld the individual right to keep and bear arms in the Second Amendment and struck down the District of Columbia’s total ban on possessing a functional firearm at home. Under the D.C. law, if a single mom kept a disassembled shotgun in her closet and a criminal broke into her apartment to attack her family, she would herself become a criminal if she assembled the shotgun in order to ward him off. In other words, the law took away the fundamental right to protect yourself in the District of Columbia. Justice Scalia, writing for the Court’s majority, emphatically rejected the constitutionality of that total prohibition. The Court established an individual right to keep and bear arms for those civilian weapons “in common use” at the time. By any measure, handguns met that test, so D.C.’s total ban on handguns was unconstitutional.

  The District of Columbia had criminalized the exercise of this cherished and indispensable right to self-defense. The Supreme Court rightly rejected D.C.’s blanket prohibition. Justice Scalia, writing for the Court’s majority, largely adopted the test that Texas and the other amici states had urged—a more rigorous standard of scrutiny than the lenient standard that the Bush Department of Justice had put forward in its own brief.

  Two years later, in McDonald v. City of Chicago, the Court finished the journey that we had urged it to begin in Heller. In McDonald, the Court rightly concluded that the individual right to keep and bear arms is a fundamental right that is, in turn, incorporated against the states. After McDonald, it is not just the District of Columbia, but also all the fifty states and every local government that is prohibited from infringing upon our fundamental individual right to keep and bear arms.

  Both Heller and McDonald were decided at the Court by single-vote majorities. In both cases, four justices dissented and argued that there was not any enforceable individual right to keep and bear arms.

  To be clear, they were not writing in favor of any particular legislation that was reasonable or permissible, or in favor of any particular gun control–policy proposal. Rather, they objected to the idea that the Second Amendment protects any individual right whatsoever, which means that the federal government or any of the states could ban any and all firearms and make it a felony for you personally to possess a gun.

  Under the dissenters’ view, you would have no individual right even to challenge these laws in court. And you could be sent to prison for violating those laws. The consequence of that truly radical view is that the Second Amendment would effectively be erased from the Bill of Rights.

  Four justices support that radical proposition. Hillary Clinton, in 2016, pledged to appoint only Supreme Court justices who would vote to overturn Heller—in other words, would vote to overturn and take away the individual right of every single American to keep and bear arms. And we are one vote away from that result.

  * * *

  As a policy matter, gun-control laws are singularly ineffective. If the objective is to stop violent crime, restricting the rights of law-abiding citizens simply does not work.

  I care passionately about stopping violent crime, and gun crime in particular. I’ve spent much of my adult life in law enforcement, trying to stop violent criminals who prey on the innocent and working to ensure that they receive the most stringent punishments.

  In Texas, I was in Sutherland Springs—the site of the worst church shooting in U.S. history—the day after that brutal mass murder. I stood in that bloody sanctuary and mourned with grieving families.

  I was in the Santa Fe High School just hours after the horrific shooting that left ten people—eight students and two teachers—dead.

  I was in Dallas for the funeral service of five police officers shot and killed on July 7, 2016.

  I was in Odessa right after the mass shooting killed eight.

  I was in El Paso right after a deranged, bigoted mass murderer killed twenty-three people in a local Walmart.

  I’ve cried with children who have lost their parents, and with parents whose children were killed before their eyes. I’ve prayed with families who have just come through hell, and with those who are living with memories that will haunt them for life.

  I’ve seen too much death and carnage and agonizing grief. And there is something profoundly wrong with the evil-doers who commit such horrific acts. The fabric of our society has been badly frayed; the civic institutions of church and family and community that used to knit us together have been tragically weakened.

  Not all of the solutions are governmental. Many of them, instead, can be found in the church and in strengthening our families and our communities.

  But there is an important role for government and laws too. In 2013, when I was newly elected to the Senate, we confronted these issues head on. That spring, a deranged madman shot and killed twenty-six people, including twenty young children, in Newtown, Connecticut.

  President Obama had just been reelected, and Democrats had control of the Senate. They were surging politically, and Democrats responded to Newtown by introducing a series of aggressive gun-control measures. Brimming with confidence, Senator Chuck Schumer declared on one of the Sunday shows that Democrats were in “the sweet spot” on gun control and they would prevail.

  Although I had only been in the Senate a
couple of months, I led the fight against their misguided gun-control proposals. And, by marshaling the facts and the law, by focusing on the Constitution and also on what actually works, we defeated every one of the Democratic power grabs.

  On the Judiciary Committee, I charged into the debates with enthusiasm, asking, for example, Senator Dianne Feinstein why the Second Amendment used the words “the right of the people”—the same operative language as the First and Fourth Amendments—and whether she would support limiting First and Fourth Amendment rights the way she was proposing to do with Second Amendment rights. She responded indignantly (in an exchange that went viral online), “I am not a sixth grader!”

  I was puzzled by that response. Of course she wasn’t a sixth grader; if she were, I wouldn’t have been asking her substantive constitutional questions. No, she’s a senator serving on the Judiciary Committee, and she was proposing legislation to significantly restrict constitutional rights. It was a demonstration of respect—not disrespect—to ask her to engage in the substance. But, such things are rarely done in the Senate.

  Virtually all of the Democratic proposals were directed at restricting the constitutional rights of law-abiding citizens. That may be a political objective for Democrats, but it is singularly ineffective for reducing violent crime.

  If you look to the data, virtually all of the jurisdictions with the strictest gun control laws have among the highest crime rates and murder rates. Conversely, most of the jurisdictions with the most permissive gun laws have among the lowest crime rates and murder rates. Many more rural states, such as Idaho, Montana, New Mexico, North Dakota, and West Virginia, have among the highest gun ownership rates and the lowest murder and manslaughter rates, according to recent data.

  Economist John Lott, then a professor at Yale, wrote a groundbreaking book in 1998 called More Guns, Less Crime. In it, he examined the effects of changing gun laws. He looked to what happened to crime rates, before and after, and, he concluded that the empirical data demonstrate that disarming law-abiding citizens increases violent crime, and allowing law-abiding citizens to defend themselves decreases violent crime. As Lott wrote:

  Criminals have ways of getting guns even when guns are banned. For example, drug gangs will get their guns to protect their drugs just as easily as they get their drugs to sell. Thus, gun control primarily disarms the citizens who obey the laws.…

  But there is another side, one rarely mentioned in the media. Concealed weapons in the hands of good people can be used to save lives and stop attacks. The prospect of a criminal encountering a victim who may be armed will deter some attacks in the first place. Carrying a gun is also the safest course of action when one is confronted by a criminal.

  This should not be surprising because firearms are often used to stop violent crimes. Indeed, the Obama administration estimated that, across America, firearms are used defensively to stop crime over 1 million times per year.

  Instead of undermining the rights of law-abiding citizens, what is actually effective in stopping violent crime is targeting the violent criminals.

  When it comes to legislation, it is often true that you can’t beat something with nothing, so in the Spring of 2013 I introduced legislation along with Iowa senator Chuck Grassley (the senior Republican on the Judiciary Committee) to prevent gun crime. The Grassley-Cruz legislation targeted violent criminals, and it worked to prevent them from getting guns in the first place and to lock them up if they violated the law. It authorized $300 million in additional funding for school safety, for things like installing bullet-proof doors and windows, purchasing metal detectors, and—most importantly—increasing the number of armed police officers on campus to keep our children safe.

  The mass shooting at the Sutherland Springs church in Texas illustrates how we can be more effective stopping gun crimes. There, it was already illegal for the murderer (as a point of principle, I refrain from ever repeating the names of these mass murderers, to help deny them the fame that they crave) to own a gun, in fact doubly so. He was a felon, and federal law prohibits felons from buying or owning guns. And he had a domestic violence conviction; federal law likewise prohibits individuals with domestic violence convictions from buying or owning guns.

  So how did he get his guns? Well, during the Obama administration, the Air Force failed to report his felony conviction and his domestic violence conviction to the national database. Therefore, when he went to buy his guns, he passed the background check.

  Grassley-Cruz would have fixed this problem. Specifically, it mandated the Department of Justice to conduct an audit of federal agencies to make sure that there are not felony convictions that they haven’t reported to the database. Presumably, had the law passed, it would have caught the Sutherland Springs murderer’s convictions.

  Furthermore, when the Sutherland Springs perpetrator filled out his background check form, he lied twice. He checked the box that said he did not have a felony conviction, and he checked the box that said he did not have a domestic violence conviction. Both of those lies were themselves felonies, punishable by up to five years in prison.

  Unfortunately, the Department of Justice rarely prosecutes these cases. For example, in 2010, there were over 53,000 felons and fugitives who tried to illegally purchase a firearm; of those, the Obama DOJ prosecuted just 44. Forty-four out of fifty-three thousand.

  Grassley-Cruz mandated that these criminals be prosecuted. It created a gun-crime task force at DOJ specifically to prosecute felons or fugitives who try to buy firearms illegally.

  Grassley-Cruz came to a vote on the Senate floor, and fifty-three senators voted yes, including nine Democrats—the most bipartisan support of any of the comprehensive measures. So why did Grassley-Cruz not pass into law? Because Harry Reid and the Democrats filibustered it—they demanded sixty votes for it to pass. Even though a majority of Senators voted for it, the Democrats blocked it. (To date, I don’t know of a single reporter who has ever asked a single Democrat why they blocked bipartisan gun-violence legislation that would have made a real difference saving lives.)

  Had Democrats not filibustered Grassley-Cruz, there is a very real possibility that the Sutherland Springs shooting never would have happened. The DOJ audit presumably would have caught the shooter’s felony conviction, and, when he lied on the background check, DOJ would have prosecuted him. Which means he would have been in a federal prison cell instead of that beautiful country church murdering twenty-six innocent people.

  * * *

  As with many other issues, on the question of gun control, Democrats have become more and more radicalized. Not that long ago, President Bill Clinton credited congressional Democrats’ 1994 passage of the so-called “assault weapons” ban with Newt Gingrich’s Republican landslide that took over Congress the following year. Clinton likewise considered Al Gore’s support for gun control as the key reason he lost the 2000 presidential election to George W. Bush.

  There was a time, politically, when Democrats sought to assure rural voters, working-class voters, and other types of voters that they were not plotting to away take their guns. To be sure, there were always Democrats who were open about their hostility to gun rights. In 1995, Democratic senator Dianne Feinstein of California said, “If I had 51 votes in the Senate for, ‘Mr. and Mrs. America, turn in all of your guns,’ I would do it.” That sentiment might work in bright blue California, but many other Democrats from across the country used to think differently.

  But that has changed now.

  In my U.S. Senate re-election campaign in Texas in 2018, I faced Beto O’Rourke. Beto ended up raising over $80 million. He out-raised our campaign three to one, swamped the state with advertising, and more than doubled Democratic turnout in the state of Texas over what it had been in 2014—from less than two million all the way up to four million. The money differential between our campaign and his was so stark that my campaign had a total of 18 paid campaign staffers, while O’Rourke’s campaign had 805.

  Our 2018 campa
ign ended up being the most expensive Senate race, in terms of hard money, in the history of the U.S. Senate. The last six weeks of the campaign, I went on a bus tour, barnstorming the state and doing fifty rallies and town halls all across Texas. And, thankfully, we turned out 4.2 million voters to defeat Beto’s historic 4 million.

  The day that Beto won the Democratic primary, I put out a humorous, satirical song on the radio. It was entitled, “If You’re Gonna Run in Texas, You Can’t be a Liberal Man.” It was set, of course, to the tune of, “If You’re Gonna Play in Texas (You Gotta Have a Fiddle in the Band).” One line of the song said that “Beto wants them open borders, and he wants to take our guns.” PolitiFact, the biased and frequently dishonest journalistic outfit that routinely attacks Republicans and declares liberal bromides to be unassailable fact, rated my statement that Beto “wants to take our guns”—in a satirical song—as objectively “false.”

  Well, fast-forward to the 2020 presidential election and, standing on the debate stage as a candidate for the Democratic Party’s presidential nomination and trying to energize the far-left activists in his party, Beto O’Rourke declared, “Hell yes, we’re going to take your AR-15s!”