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Law & the Courts

Watch Dianne Feinstein Move the Constitutional Goalposts on ‘Assault Weapons’

Sen. Dianne Feinstein (Aaron P. Bernstein/Reuters)

Thankfully, much of the craziness that dominated yesterday’s hearing has abated, and we’re mercifully on to substance. Apart from Brett Kavanaugh’s responses on Roe v. Wade (more on that later), his exchange with Dianne Feinstein on assault weapons was the most interesting of the day — and the most revealing of Democrats’ constitutional vulnerability on a key item in their gun-control-policy agenda. Senator Feinstein shared the key exchange on her Twitter feed. I invite you to watch it below:

At issue is Judge Kavanaugh’s dissent from a D.C. Circuit Court opinion upholding the District’s ban on so-called assault weapons. Unlike the court majority, he relied on the plain language of the Supreme Court’s Heller opinion to note that semi-automatic rifles were in “common use” for “lawful purposes” and thus subject to constitutional protection. Here’s a sample of his dissent:

In Heller, the Supreme Court held that handguns — the vast majority of which today are semi-automatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.

A number of Democrats are well aware that if an assault-weapons-ban case is heard by the Supreme Court, then the “common use for lawful purpose” standard is likely going to dictate the case. If it does, most assault-weapons bans will likely fall. After all, the AR-15 and its variants are the most popular rifles in America today, owned by millions of Americans yet rarely used in crime (it’s more common for criminals to kill with fists or knives than with rifles of all types.)

So, how does Feinstein attempt to deal with this fact? By arguing that common possession does not equal common use. No, really. She says, “You’re saying the numbers determine common use? Common use is an activity. It’s not common storage or possession, it’s use. So what you said is that these weapons are commonly used. They’re not.”

What is she talking about? First, how do you determine “common use” in a nation of millions except by reference to numbers? It does matter that millions of Americans own these weapons.

Second, why does she say they’re not “commonly used” — even in the most active sense? I own an AR-15, and I’ve fired it thousands of times. I use it for target practice. I use it to hone and maintain my skills. And yes, I “use” it for self-defense.

And that brings me to my third point. You “use” a gun even when you don’t fire it. I carry a pistol when I leave the house and rely primarily on my AR to defend my home. Thankfully, I’ve never had to point either weapon at another human being, and I hope that I never will. But I use those weapons every day. I keep them readily available and in top condition. Simply put, I use them to protect my family.

Weapons have an active and passive use. The active use is obvious. You fire the gun to hunt, for sport, to hone your skills, or (rarely) to defend yourself and others. The passive use is often more important. Guns deter and protect without a single pull of the trigger.

If the Democrats hope to implement a national assault-weapons ban — or preserve state and local bans — they’re going to run headlong into the plain language of Heller, a decision grounded in the text, history, and original public meaning of the Second Amendment. Word games about “common use” won’t stop Brett Kavanaugh’s confirmation, and if they don’t stop Kavanaugh now, they likely won’t prevail when he’s on the Court. When push ultimately comes to shove, America’s rifle, the AR-15, is almost certainly here to stay.


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