The Corner

Law & the Courts

Senator Menendez’s Unlettered Attack on Judge Kavanaugh

New Jersey Sen. Bob Menendez during a Senate Banking Committee hearing on Capitol Hill, January 23, 2018. (Aaron P. Bernstein/Reuters)

How silly are the Kavanaugh hearings going to get? This silly:

This is rank demagoguery — and it is dangerous to the public’s understanding of both the law as it stands, and of the role of judges in our system. The “common use” standard to which Menendez refers is not one that Kavanaugh invented. Rather, it is to be found in the Supreme Court’s 2008 ruling in D.C. v. Heller, a decision that all of the lower courts in the United States are bound to uphold. Kavanaugh, who was on one of those lower courts when he wrote the words that have so vexed Senator Menendez, cited the “common use” standard in his dissent in Heller v. D.C., in which he argued that there was no meaningful reason for his court to make a legal exception for commonly owned “assault weapons,” and that in doing so it was violating its obligation to follow Supreme Court precedent. Whether one thinks Kavanaugh was right or wrong — I think his dissent was masterly, and correct — it is extraordinarily dishonest for Menendez to imply that it was the product of some ex nihilo political extremism. On the contrary: Kavanaugh, who made it clear in his opinion that there is some space between his personal views on gun control and his legal interpretation of existing law, was doing his job, and honorably at that.

His demagoguery aside, the supreme irony of Menendez’s hamfisted critique is that it ends up making Kanavaugh’s point. If “used frequently in crime” were our legal standard — as Menendez seems to think it should be — then it would not be “assault weapons” that would be ripe for prohibition, it would be handguns. Such a law, however, would be flatly unconstitutional. Given how infrequently they are used for ill, that they are in common use, and that they share almost every characterization with the technology that the Second Amendment has been held to protect, there is no good reason to assume that “assault weapons” should be treated differently—which, if you read Heller v. D.C., is precisely the point Kavanaugh was making. How foolish politicians look when they wade into unfamiliar territory.

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