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Kavanaugh to Feinstein: Wide Ownership of Semiautomatic Rifles Constitutes 'Common Use' Protection

Supreme Court nominee Brett Kavanaugh, a federal appeals court judge, holds up a pocket copy of the Constitution as he testifies before the Senate Judiciary Committee on Capitol Hill on Sept. 5, 2018. (AP Photo/Jacquelyn Martin)

WASHINGTON — Supreme Court nominee Brett Kavanaugh defended semiautomatic rifles as guns “that seemed to fit common use and not being a dangerous and unusual weapon” under questioning from Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) at his confirmation hearing today.

Feinstein, who crafted the assault weapons ban that was law from 1994 to 2004 and has unsuccessfully tried to resurrect the ban, grilled Kavanaugh about a 2011 dissent he wrote arguing that the District of Columbia’s assault weapons ban was unconstitutional and “equivalent to a ban on a category of speech.”

“I never thought this would happen in our country, that someone would bring a semiautomatic assault weapon into a school and just mow down children and staff,” Feinstein said, referring to repeated school shootings.

“What did you base your conclusion that assault weapons are in common use and what evidence or study did you use to do that?” she asked.

Kavanaugh told Feinstein that he understood “your role on that issue and your long leadership on that issue and appreciate that.”

“I faced a decision where, as in every other decision, just about, on the D.C. circuit, I had to follow precedent, precedent of the Supreme Court. I don’t get to pick and choose which Supreme Court precedents I get to follow. I follow them all,” he said. “And so in the Second Amendment context the Supreme Court, in the Heller decision, written by Justice Scalia, had held that there was an individual right to keep and bear arms. And then in explaining what that meant and what exceptions would be allowed to that right, Justice Scalia’s opinion for the court, in part three of the opinion, went through this does not mean that there’s no gun regulation permissible… the way I understood what he said there and what was said in the McDonald case later was that dangerous and unusual weapons could be prohibited.”

“And what he referred to specifically is machine guns could be prohibited,” he added.

On the “common use” distinction, Kavanaugh said that “as a matter of law” he couldn’t distinguish semiautomatic rifles from semiautomatic handguns, “and semiautomatic rifles are widely possessed in the United States.”

“There are millions and millions and millions of semiautomatic rifles that are possessed so that seemed to fit common use and not being a dangerous and unusual weapon. That was the basis of my dissent — in a nutshell, the basis my dissent,” he explained.

“You’re saying the numbers determine common use?” Feinstein retorted. “Common use is an activity. It’s not common storage or possession, it’s use. So what you said was that these weapons are commonly used. They’re not.”

“They’re widely possessed in the United States, Senator, and they are used and possessed,” he said. “But the question is, are they a dangerous and unusual? They’re certainly dangerous. All weapons are dangerous. Are they unusual?” The judge argued that because of prevalence, they weren’t unusual.

Kavanaugh added that as a Beltway native he understood the problem of “gun violence and gang violence and drug violence” but had to follow precedent.

“How do reconcile what you’ve just said with the hundreds of school shooting using assault weapons that have taken place in recent history?” Feinstein asked. “How do you reconcile that?”

“Senator, of course the violence in the schools is something we all detest and want to do something about, and there are lots of efforts, I know, underway to make schools safer,” Kavanaugh replied. “…Guns, handguns, and semiautomatic rifles are weapons used for hunting and self defense, but as you say, Senator, you rightly say they’re used in a lot of violent crime and cause a lot of deaths. Handguns are used in lots of crimes that result in death and so are semiautomatic rifles. That’s one of the — that’s what makes this issue difficult.”