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.