Kavanaugh vs. Feinstein on the Constitutionality of bans on “assault weapons.” (Photo: PBS News Hour)
One lingering legal question concerning our 2A rights is the constitutionality of bans on black rifles. Can the government prohibit residents from purchasing and possessing some of the most popular semiautomatic long guns in the country?
It’s a question Supreme Court nominee Brett Kavanaugh has answered in the past while serving as a judge on the United States Court of Appeals for the D.C. Circuit. Problem is anti-gunners like Sen. Dianne Feinstein did not like his answer. Naturally, this topic came up during Kavanaugh’s confirmation hearing on the Senate side of Capitol Hill this week.
“You specifically argued that the D.C. assault weapons ban was unconstitutional and I think because you said these weapons were in common use,” said a steely-eyed Feinstein. “What did you base your conclusion that assault weapons are in common use and what evidence or study did you use to do that?”
Kavanaugh mentioned that he follows Supreme Court precedent, pointing mainly to the landmark 2008 Heller decision along with its successor the 2010 McDonald decision, which among other things make it clear that the 2A protects firearms “in common use at the time” for “lawful purposes like self-defense.” Given that there are millions of AR-pattern rifles in circulation there is little doubt that they are “in common use” and therefore protected under the 2A.
By arguing that AR-15s can’t be regulated, Brett Kavanaugh made crystal clear that he’s to the right of Justice Scalia on guns. Even pro-gun Justice Scalia knew the 2nd Amendment did not protect all weapons in his opinion in Heller.
— Sen Dianne Feinstein (@SenFeinstein) September 5, 2018
“Most handguns are semi-automatic,” Kavanaugh explained. “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.”
The Democratic Senator from California was not convinced, “And you specifically argued that it was unconstitutional to… to ban assault weapons because they are in common use. And that I believe was your dissent in the case?”
SEE ALSO: NRA-ILA: Justice Scalia Made Clear the Second Amendment and Heller Prohibit ‘Assault Weapon’ Bans
“Yes, and I was referring to some kinds of semi-automatic rifles that are banned by D.C. are widely owned in the United States,” said Kavanaugh. “And that seemed to be the test that the Supreme Court had set forth in the Heller and McDonald cases — in other words, if a type of firearm is widely owned in the United States. Now whether I agree with that test or not was not the issue before me. I have to follow the precedent of the Supreme Court as it’s written and that’s what I tried to do in that case.”
Finally recognizing that her legal argument was falling apart, Feinstein made an appeal to emotion. She asked the judge about school shootings. To which he said, “Of course the violence in the schools is something we all detest and want to do something about and there are lots of efforts underway to make schools safer.” Kavanaugh then went on to talk about how at his children’s school they are hardening it to make it safer, and how living in D.C. for many years has made him keenly aware of gun-related violence. Still, though, that doesn’t get in the way of him doing his job.
“And so I understand the issue but as a judge my job as I saw it was the follow the second amendment opinion of the Supreme Court whether I agreed with it or disagreed with it,” said Kavanaugh.
Sounds like someone we need on the bench.
The real problem is that today the democrats/communist are pulling a real psychological warfare on the public. What they they are doing is making a personnel accountability problem a society problem in the we as citizens are somehow responsible for those who commit criminal acts just because they use a gun! It’s the person that does these things, gun or not!
WTF does this lady think we do with our “assault weapons”. If they are in common possession they are in common use. Unless she is talking about brains, or the Constitution in her case, she possesses them, but does not use them.
This ignorant old hag should just retire already, her tired old shtick doesn’t play anymore, Dammit California are you not tired of being represented by dipshits already ?
Bottom line–Ar-15s and Ak-47s are not assault weapons in the truest sense of the word-
ASSAULT WEAPONS are select fore–sometimes burt of 3 ,FULL AUTO (MACHINE GUN) and single shot.
The Ar and AKs that you buy at your local store are SINGLE SHOT ONLY AND NOT ASSAULT WEAPONS–PERIOD–END OF STORY.
Sen Feindstein go crawl back in the hole you emerged from and shut your uneducated DUMB-O-CRAT mouth and take all you gun hating libitards with you.
WE THE PEOPLE WOULD BE BETTER OFF WITHOUT ANY OF YOU.
I am a gun collector and hobby gunsmith. I just went through my collection and found the following:
Colt 1903 semi-automatic pistol
Colt 1911, manufactured in 1917
Ithaca 1911A1, 1944
Browning Hi Power, 1968
Berretta 92FS 1988
Winchester 1903 Rifle Semi Auto, 1907
Winchester M-1 Garand, 1943
Inland M-1 Carbine, Modern
Ruger 10/22 Semi Auto, Modern
6 additional semi-auto handguns, modern
4 German semi-auto handguns, WW2
I do believe I have covered most of my semi-auto guns.
They are common no doubt, and should have been explained to Sen Feinstein. No I don’t own an AR15, because my M-1 carbine can do the same and it has a wood stock.
Whats stunning to me is the complete ignorance of the subject of her passion for the last 2+ decades. AR-15s not in common use? She has stated before that they could not be used for defense or hunting, how dumb is that? I commend Kavanaugh for schooling her.
Unfortunately the “schooling” will not take for her, never has, never will.
The Constitution does not distinguish between “common” and “uncommon” arms. Were it not for an unconstitutional and discriminatory tax (actually a license fee masquerading as a tax) in the 1930’s, the Thompson submachine gun might be in “common use” today. A newly introduced firearm may not be common at the moment, but could become so over time. I remember when the SKS was a very scarce rifle, being confined to a few souvenir weapons captured in Vietnam. I can remember when every gun show featured tables of Chinese import Tokarev style pistol. Now you never see one for sale. Does that make them “uncommon”? As usual, the Court fails to tackle the real issue: “shall not be infringed”.
Always focusing on the guns, and never the people who misuse them. Yet, I find it hypocritical in that is the only inanimate object that gets this royal treatment. She remains silent when the psychos run over people, and has never called for “car control”. When the psycho slaughtered his family with a knife, she said nothing about “knife control”.
Bret Kavanaugh never really stated his view on what the Second Amendment means to him. What he said was he was fallowing the president set down by the Supreme Court. What Senator Feinstein should have asked him was what his personal view of the Second Amendment was and what he thought the Founding Fathers wanted it to mean? Too late now!
Hey FINE-STINE—–Then MAYBE THE DEMMOCOMMIES SHOULD NOT HAVE HAD SCALIA KILLED TO MAKE WAY FOR O’BAMMY TO BE “APPOINTED” AS SOON AS THE WHORE OF BABBLE-ON GOT HER ASS IN THE SEAT!! TOUGH SHIT!!!! FOOOOOOLLLLLL!
All he needs to do is quote the deaths by irresponsible drivers and ask if she should be denied transportation because of their misuse of a vehicle!
Miss Feind-stein, turn in your keys!
You are walking from this day forward!
I would have asked her if she would have supported a mandatory and total news blackout on reporting on school shootings, given the fact that there are some that believe such reporting encourages other unstable people to copycat them.
Someomr needs to ask her why she would not allow officers to have semi auto pistols while she was mayor of San Francisco, it would have put them on equal ground with the bad guys since officers only had revolvers and were often found dead with revolver in one hand and a speed loader in the other! She is now and always has been worthless!
And she is not considered progressive/left leaning enough!
The gun haters will say half truths and broadcast snippets of information to support their agenda. It doesn’t have to have any data or expert opinion, they can always come back on page 10 and claim they had bad information, but the original info is what many remember. Obama was a master at half truth and propaganda. What is mind blowing is sick humans are the problem with mass murder. I can’t wrap my head around why the gun haters can’t see this and understand eliminating all firearms will not stop a sick human from killing. It only renders the potential victims vulnerable without a firearm to defend themselves.
Is she just Thick headed or actually this stupid??????
Neither, just a criminal and evil. A criminal due to perjury and theft of Honest Service, she has sworn repeatedly before Federal Judges to support and defend the Constitution yet attacks it at every chance.
This is very painful to watch! Is there something in the water out there in CA and are Feinstein and Pelosi drinking from the same cup? They both seem to have bobbing heads, retching in pain, while attempting to comprehend what is being said.
Just every other libtard, they’re suffering from terminal cerebral atrophy.
WHAT???? Hundreds of school shootings?????? Where are those facts Diane?????
She could have been citing the debunked report that wildly overstated the amount of school shootings.
My thoughts and reaction, exactly.
Feinstein is the queen of snake oil sales but Kavanaugh surefootedly handled her slime encrusted land mines. He is good, very good !!!
She looks like a gargoyle sitting up there. How can this old witch still be in the senate? Who are the idiots still voting this old hag into office? She want’s here own agenda no matter what. She just can’t stand that us common folks still have any guns.
Kavanaugh stated his predominant legal basis for his views, precedent under the constitution. He didn’t “push back” on Feinstein because there is no point, he’s not going to change her views, and she’s certainly not going to change his.
Funny how Fiend-stein WANTS him to follow abortion precedent in Roe v Wade, but NOT 2A precedent.
If he is so pro-Constitution, why does he not argue, “:…Shall Not be Infringed.”?
Theirs no profit in elaborating with someone who is trying to lead you into a minefield of booby traps. More prudent to KISS the problem and leave the arguments for another venue.
His goal is to sit through 3 days of sometimes unfair questioning demeaning him and trying to trick him. His job is to get through the process and not argue his personal opinions or legal opinion be. It is to get confirmed not win any verbal argument with Dems. Bork tried that and it bit him. You just take the worse type of innuendo question and say “Thank you for the opportunity to answer that question Senator”.
You are so right, Dr M. Also why didn’t he address the fact that it is the least used type of gun in gun violence? Also he should’ve addressed that it is the most widely used rifle in target competition. This all refutes the ‘assault weapons ‘ argument. If ignorance is bliss, then anti-gunners must be the happiest people on earth!
He had good reason not to challenge the established (thought admittedly lawyerly) “assault rifle” terminology: that is the phrase which laws in many states use to refer to banned or limited-availability weapons. Until those laws are removed, the words are how lawyers who argue cases must speak about them. For him to do otherwise would make it appear he was willing to “legislate from the bench” (i.e., infringe on the right of the legislature to establish law rather than interpret existing law and either uphold or invalidate it). I think if he were writing an opinion that invalidated an unconstitutional definition of the phrase he might challenge the choice of words used to describe what was being banned, but it would be less important than challenging the definition of what was being banned; you could write a law naming “artery killing popcorn” to be any popcorn with butter on it and ban it from theatres. The ban would be unconstitutional but not because of the name… it is the restriction that is the problem, not the terminology.
Why doesn’t he challenge the very premise of an “assault weapon?” No such thing exists! It’s a made-up political term. He should’ve immediately pointed out that semi-automatic rifles have been commercially available since 1911, and thus are in “common use.” Furthermore, he didn’t challenge her assertion that “assault weapons” are used in “hundreds of school shootings.”
Kavanaugh handled it perfectly. To get into semantics with Feinstein would have been playing her game and turned the discussion into an emotional one vs. a question of law. The left cannot have a rational fact based discussion.
For Kavanaugh to have challenged her on the “assault weapon” misnomer would have had him fall into the trap she was setting….to get him to stray from the precedents already set, to voicing his feelings, or defending things to defend his personal opinions.
Round about he did define what semi automatic rifles were as opposed to “assault rifles”. He never mentions assault rifles. Coursestine doesn’t.get what he is stating.