It won’t surprise you that the doyenne of civilian disarmament, Diane Feinstein, is none too happy about Supreme Court nominee Brett Kavanaugh’s dissent in Heller 2 in which he wrote that the District of Columbia’s “assault weapons” ban and registration requirement are unconstitutional.
As you’d expect, the senior Senator from California asked Judge Kavanaugh about his reasoning — particularly regarding “assault weapons'” common use — in this morning’s confirmation hearing. Kavanaugh noted that . . .
…I had to follow a precedent. A 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.
And so in the Second Amendment context, the Supreme Court, in the Heller decision written by Justice Scalia, 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 that opinion, went through this does not mean that there is no gun regulation permissible.
So that was an important part of the opinion, part three of the Supreme Court’s opinion, where it pre-identified a number of exceptions that would be allowed. Felon in possession laws, concealed carry laws, possession of the mentally ill, possession of guns in schools, possession in certain kinds of buildings, he pre-identified that.
As to the weapons, the way I understood what he said there and what I understood in the McDonald case later, was that dangerous and unusual weapons could be prohibited. And what he referred to specifically is that machine guns could be prohibited.
So it’s very important to recognize that under the Heller decision, machine guns can be prohibited. … The court in Heller, the Supreme Court, upheld or struck down a DC ban on handguns, most of which are semi-automatic.
DiFi then interrupted the nominee to challenge him on his opinion regarding “common use,” asserting that so-called assault weapons are not commonly used in this country. Kavanaugh replied,
Justice Scalia’s opinion used that phrase and the next sentence of the opinion talked about dangerous and unusual weapons and the Court, in Heller itself, the Supreme Court, struck down a DC ban on handguns. Now most handguns are semi-automatic. …
And the question came before us of semi-automatic rifles. And the question was, can you distinguish as a matter of precedent — again this is all about precedent for me, trying to read exactly what the Supreme Court said, and if you read the McDonald case — and I concluded that it could not be distinguished as a matter of law.
Semi-automatic rifles from semi-automatic handguns. And semi-automatic rifles are widely possessed in the United States. There are millions and millions and millions of semi-automatic 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.
So there you have it. Adherence to the Heller precedent, for better or worse.
But then, displaying either jaw-dropping obtuseness, naked disingenuousness, or the onset of dementia (you make the call), DiFi then tried to distinguish between common ownership of semi-automatic rifles and their common use. She said that while semi-autos may be commonly owned and stored by millions of Americans, they aren’t commonly used.
Props to Judge Kavanaugh for maintaining his composure and not laughing in her face at that point. Instead, he calmly pointed out that semi-automatic rifles, in fact, are both widely possessed and widely used in this country and don’t qualify as dangerous or unusual under the Heller opinion.
See the exchange for yourself (it happens at the beginning) in the following video.