Ted Cruz is a national debate champion and has argued nine cases before the U.S. Supreme Court. Joe Scarborough is a television host trying to break into the world of synthetic, Eurodisco pop music. So it made total and complete sense for Joe to lock horns with Ted over the Supreme Court jurisprudence.
Yet that’s precisely what the former conservative lawmaker Scarborough did, suggesting to Cruz that since the Supreme Court has to this point refused to hear all cases regarding assault weapons bans, it is a de facto declaration of the Court that such bans are constitutional.
Forget Ted Cruz-level expertise of constitutional law, this is a failure of even basic high school understanding of how the federal court system works. The Supreme Court routinely allows lower appeals courts to debate and render verdicts relative to an issue, developing good legal justification for their decisions. When those lower courts conflict with one another, the Supreme Court will often grant cert (agree to hear an appeal) and settle the disputed constitutional issue.
And that’s what Cruz pointed out to Scarborough in a far more polite way than necessary given that this wasn’t a private conversation – Joe was misinforming the public one a significant question, the very definition of “fake news.”
SCARBOROUGH: But you know though that every American doesn’t have a Constitutional Second Amendment right to carry an AR-15. Yes or no?
CRUZ: I’m not gonna debate that. The courts, the courts will assess that it-
SCARBOROUGH: [interrupting] Wait, no, no, but the courts have assessed it. I just-
CRUZ: No they haven’t. That’s not what a denial of cert means. The court often on an area of Constitutional litigation will let the Federal Courts of Appeals -- they call it percolating, which is to let them debate back and forth, and a denial of cert has no precedential impact.
Of course that is right, and in the spirit of integrity Scarborough should have acknowledged and corrected himself. It is flatly absurd to intimate that the Supreme Court has declared something that they haven’t just declined to adjudicate but have not to this point even entertained.
But instead of clarifying his remarkably uninformed suggestion, Scarborough hunched his back and hissed at Cruz like a wet cat, complaining,
“I don’t need you to lecture me on what the Supreme Court does and what it doesn’t do.”
Actually Joe, someone needs to. Because you are not only misinformed yourself, you are misinforming the public that watch your program. And even after getting politely corrected by Cruz, it didn’t stop him from perpetuating this obviously incorrect understanding of the way the legal system functions:
“Even a dumb country lawyer like me understands that an AR-15 today is not recognized as a constitutional right of Americans under the Second Amendment.”
What is he talking about? That is not anywhere close to being true unless you take the extremist and indefensible position that Americans have no rights except the ones the Supreme Court has articulated in a majority opinion. Absolute sophistry. No surprise Cruz explained that the precise opposite is true:
“Actually, under the test that the Supreme Court laid out in Heller, whether an instrument of defense is in ‘common and popular usage,’ the AR-15 is one of the most popular and common weapons in the United States. Under the test of Heller, it is clearly protected.”
Joe can debate anyone on his program he wants, but if this is the quality of thought he plans on putting into his arguments, he should probably stick to disputes over chord progressions with Gordon Lightfoot instead of constitutional law with Ted Cruz.