During day two of the Supreme Court confirmation hearings Brett Kavanaugh told Sen. Dianne Feinstein (D-CA) that AR-15s and similar rifles are in “common use” because they are “widely possessed.”
Kavanaugh’s explanation came after Feinstein pointed out that he “argued that the DC ‘assault weapons’ ban was unconstitutional,” and did so because AR-15s and similar rifles were in “common use.” She asked him to explain the basis for such a conclusion.
During a live Fox News broadcast, Kavanaugh lead Feinstein and viewers through the precedent that led him to his position. He said, “I don’t get to pick and choose which Supreme Court precedents I follow. I follow them all.”
He then went to District of Columbia v. Heller (2008), which reaffirmed the individual right to keep and bear arms. Kavanaugh noted that in the course of “explaining what that [right] meant, and what exceptions would be allowed to that right, Justice Antonin Scalia’s opinion for the court, in part three of the opinion, went through [to show] this does not mean that there is no gun regulation permissible.”
From there Kavanaugh continued to move systemically through precedent and explain that Heller allowed that “dangerous and unusual weapons could be prohibited.”
Feinstein interrupted Kavanaugh to say make clear she did not want to hear a list of all the precedent but an explanation of “‘common use’ being a justification” for opposing a ban on AR-15s and similar rifles. She said, “‘Assault weapons’ are not in common use.”
Kavanaugh replied, “Justice Scalia’s opinion used that phrase and I think the next sentence of the opinion talked about dangerous and unusual weapons. And the Court, in Heller itself, the Supreme Court, struck down a DC ban on handguns. Now most handguns are semiautomatic…and the question came before us, of semiautomatic rifles, and the question was can you distinguish, as a matter of precedent…and I concluded that it could not be distinguished as a matter of law, semiautomatic rifles from semiautomatic handguns.”
He added, “And, 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 and not be a dangerous and unusual weapon.”
Feinstein also asked Kavanaugh how he could argue against an “assault weapons” ban in light of school violence. He made clear that he is not indifferent to such violence. Kavanaugh said, “Of course the violence in schools is something we all detest and want to do something about.” Yet he observed that “handguns and semi-automatic files are weapons used for hunting and for self-defense.”
On August 31, 2018, Breitbart News reported that over 9 million AR-15s were made for the U.S. gun market alone during the eight years of the Obama administration. And the Wall Street Journal reported that ARs made up more than $2.5 billion of the overall $10 billion firearms market in the U.S. during 2017.