In trying and failing to corner Supreme Court nominee Brett Kavanaugh on guns, Sen. Dianne Feinstein, D-Calif., ended up confirming what Second Amendment advocates believe about “assault weapon” bans: They’re usually based on flawed talking points and written by and for people who either don’t understand or choose to ignore the facts about guns and the Second Amendment.
It all has to do with the understanding of “dangerous and unusual” firearms versus those in “common use” that Justice Antonin Scalia wrote about in the landmark D.C. v. Heller case in 2008.
Basically, Feinstein went after Kavanaugh’s dissent from a ruling that upheld D.C.’s so-called “assault weapons” ban that outlawed semi-automatic rifles like the AR-15. Kavanaugh said that these firearms should be protected under the Heller precedent. “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.”
Feinstein tried to argue that the AR-15 (the most popular rifle in the country) isn’t in common use because of how she thinks people use it.
Sen. Feinstein (D-CA) on guns: "Common use is an activity. It's not common storage or possession. It's use. So what you said was that [assault] weapons are commonly used. They're not."
Kavanaugh: "They're widely possessed in the United States, Senator." https://t.co/irsDUUh69l pic.twitter.com/X1dWO7hcMc
— CBS Evening News (@CBSEveningNews) September 5, 2018
As David French explains in greater detail at National Review, there is a difference between the active and passive use of firearms, but both count toward “common use.” The simple act of having a gun in the home for self-defense is indeed a passive use of that firearm. Just because I’m not taking a particular firearm hunting or to the shooting range on a regular basis doesn’t mean I’m not using it.
Under Feinstein’s logic, the only guns that would be protected would therefore be those that we actively use for hunting or recreational shooting on a regular basis. However, the Framers’ right to keep and bear arms, set forth in the Second Amendment, wasn’t informed by their run-ins with white-tailed deer, clay pigeons, or paper targets.
In short, if you actually understand the issues behind gun laws and guns themselves, the exchange was a train wreck.
But given Feinstein’s line of questioning, there are three options here: Either she’s intentionally gaslighting the American people about firearms, this is what she legitimately believes, or it’s some combination of the two.
The primary problem with Feinstein bringing up “assault weapons” in this hearing is that the term has no inherent or constitutional meaning. It means whatever anti-gun politicians want it to mean at any given time, and it’s used to talk about multiple substantively different kinds of gun bans that have their own unique problems.
Let’s look at the oft-discussed 1994 “assault weapons ban.” The restraints of the law were placed mostly on cosmetic features that Second Amendment advocates typically pan as only addressing “scary-looking guns” rather than addressing what the guns do or how they fire. And instead of effectively reducing gun violence, a detailed study found all the law did was change the kinds of guns that criminals used to commit crimes.
Fast-forward to today, the biggest bogeyman for the gun control lobby right now is the AR-15-style rifle. It’s the most popular rifle platform in the United States and is very commonly used. A semi-automatic AR-15’s action, fire rate, magazine capacity, and ammunition used are similar to other firearms like the Ruger Mini 14 ranch rifle, which doesn’t face the same kind of scrutiny because it’s not as popular and is aesthetically different from the AR-15 hardware. Yet one of the biggest hobbyhorses of anti-gun lawmakers is banning the AR-15 specifically, facts and “common use” be damned.
More recently, congressional Democrats introduced an “assault weapons” ban that would ban a large number of mass-manufactured semi-automatic firearms that are very commonly used and have been for a long time. It’s hard to imagine that such a statute would ever pass constitutional muster under the precedent set by D.C. v. Heller.
Finally, it’s also hard to see how this or any legislation supported by the anti-gun lobby, or anything stronger than the 1994 ban that Kavanaugh might eventually have to rule on, would deter mass shootings or any other gun violence while not violating the Second, Fourth, Fifth, and/or 14th Amendments.
But why let reality get in the way of headline-friendly, narrative-driven talking points?