Feinstein Clashes With Kavanaugh on Second Amendment

September 5, 2018

Sen. Dianne Feinstein (D., Calif.) tangled with Supreme Court nominee Brett Kavanaugh on Second Amendment jurisprudence during his confirmation hearing Wednesday morning, criticizing the Supreme Court's precedent on firearms in common use. 

Feinstein asked Kavanaugh about his dissent, as a judge on the U.S. Court of Appeals for the D.C. Circuit, in District of Columbia v. Heller, in which he argued a handgun ban was unconstitutional. Feinstein asked which weapons were protected under the "common use" standard and "what evidence or study did you use to do that?"

Kavanaugh replied that, as a circuit judge, "I don't get to pick and choose which Supreme Court precedents I get to follow. I follow them all."

After some back and forth, Feinstein interjected, "Let me interrupt you. I think we're on totally different wavelengths. I'm talking about your statement on common use, as common use being a justification. And assault weapons are not in common use."

Kavanaugh responded that semiautomatic weapons were protected, since "there are millions and millions and millions of semiautomatic rifles that are possessed, so that seemed to fit common use."

Feinstein interrupted to argue that numbers of guns owned does not determine whether they are in common use.

"You’re saying the numbers determine common use?" she asked. "Common use is an activity, it is not common storage or possession. It is use. So, what you said was that these weapons are commonly used. They are not."

The Supreme Court took Kavanaugh’s side in 2008 when it reversed the D.C. Circuit’s Heller ruling. The high court’s opinion in Heller held that the standard in United States v. Miller was not, as Feinstein suggested, about the "purpose" for which arms were purchased. Rather, Heller affirmed the Miller holding that the Second Amendment protects the right to keep and bear arms of the kind in "common use" for militias, no matter the reason for which they are purchased today.

Feinstein was nonetheless alarmed. She asked, "How do you reconcile what you've just said with the hundreds of school shootings using assault weapons that have taken place in recent history? How do you reconcile that?"

Kavanaugh expressed support for efforts to curb violence and steps to protect schools from crime, but within the bounds imposed by the Supreme Court and the Constitution. In addition to his dissent when Heller was before the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh has in several instances supported key parts of the Second Amendment, including the opinion in Grace v. D.C.

The nominee further defended the role of a judge in interpreting the Constitution, even in Second Amendment cases, leading Feinstein to relent and change the subject.

Feinstein used the Heller decision in a similar way during Justice Neil Gorsuch’s confirmation hearing. During the March 2017 hearing, the California Democrat asked Gorsuch whether he agreed with Justice Antonin Scalia’s limits on the Second Amendment as defined in Heller. Like Kavanaugh, Gorsuch replied that he "can't prejudge that litigation," and that "Heller is the law. And I follow the law."

Gorsuch was eventually confirmed by a 54-45 vote, with three Democrats voting with Republican senators in support. Several Democrats and Republicans remain publicly undecided on Kavanaugh’s nomination.