Senate Democrats claim to fear that Brett Kavanaugh will be too willing to overturn Supreme Court precedents, but it turns out that not all precedents are created equal. They’re also complaining that Judge Kavanaugh might fail to overturn at least one precedent—the landmark 2008 Heller decision upholding an individual’s right to bear arms.
Gun control is a favorite issue of California Senator Dianne Feinstein, who challenged Judge Kavanaugh at Wednesday’s confirmation hearing for following the Supreme Court’s Heller precedent too literally for her political tastes. The 2008 Supreme Court ruling struck down a Washington, D.C., ban on handguns. The district then banned so-called assault weapons including semi-automatic rifles such as the AR-15. In D.C. v. Heller (2011), Judge Kavanaugh dissented from his appellate-court colleagues by arguing that the rifle ban is unconstitutional.
“There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles,” Judge Kavanaugh wrote in his circuit-court dissent. “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, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are.”
This upsets Ms. Feinstein, who wants to ban semi-automatic rifles, and so she asked Judge Kavanaugh “what evidence or study did you use” to determine that assault weapons were in “common use”? Mr. Kavanaugh replied: “Semiautomatic rifles are widely possessed in the United States. There are millions and millions and millions of semiautomatic rifles that are possessed, so that seemed to fit common use.”
Americans across the country use semi-automatic rifles for hunting and self-defense—so many that Dick’s Sporting Goods reported weaker revenue last quarter after stopping sales of assault-style weapons. But according to Ms. Feinstein, the fact that large numbers of Americans buy and use these weapons doesn’t mean they are in common use.
“Common use is an activity,” she said. “It is not common storage or possession. It is use. So what you said was that these weapons are commonly used. They are not.” In colonial times long guns and rifles were commonly kept and carried to be used to defend against tyrannical government and billigerents. By Ms. Feinstein’s Second Amendment interpretation, nearly any gun could be banned since they spend more time in storage than “use.”
Judge Kavanaugh said he’d faithfully apply Scalia’s Heller opinion, which allowed that some gun regulation may be permissible—for instance, he said, “dangerous and unusual weapons could be prohibited.”
But states have been trying to undercut Heller left and right. New Jersey requires that individuals who wish to carry a handgun for self-defense prove to the state that they have a “justifiable need”—which has become a nearly impossible standard to meet. California prohibits large-capacity magazines.
The Supreme Court hasn’t heard a major Second Amendment case since applying Heller to the states with its 2010 McDonald decision. But several challenges to state firearm restrictions are meandering through the circuits and could soon land at the High Court.
The Feinstein-Kavanaugh exchange neatly summarizes the stakes in modern judicial interpretation. Liberals want to use a balancing test that would gut Heller of practical meaning even if they don’t formally reverse it. Judge Kavanaugh would follow the originalist “common use” standard that would make regulation harder, though not impossible, to justify. Liberals are all too happy to overturn Supreme Court precedents they don’t like.