WHAT IS “COMMON USE?”
by Sam Bocetta, ©2018
Specifically, Senator Dianne Feinstein (D-CA) challenged Judge Kavanaugh on the right to own an AR-15 during the Senate confirmation hearings when she argued that the AR-15 and similar semi-automatic rifles are “not in common use” with American civilians.
Over her career, Senator Feinstein has established herself as one of the biggest proponents of gun control in the Senate, and has attempted to get the original assault weapons ban renewed numerous times since the previous law expired in 2004.
Both Judge Kavanaugh and the National Rifle Association challenged Senator Feinstein’s assessment that AR-15’s were not in common use with American civilians.
The NRA in particular pointed out that nearly 16 million AR-15’s are currently in circulation with American civilians and are widely available at sporting goods stores as well as online marketplaces such as Gunbroker, Armslist, and the GrabAGun online store.
“Needless to say, there is nothing reasonable or moderate about banning what is literally the most popular class of rifles in America,” the NRA said in a statement.
For his own part, Kavanaugh has a history of supporting gun rights as a judge. In 2011, he dissented in the U.S. Court of Appeals D.C. Circuit decision that upheld Washington D.C.’s assault weapons ban, which essentially banned all semi-automatic rifles with a detachable magazine in addition to a pistol grip, flash suppressor, or adjustable stock.
In his dissent, Kavanaugh argued that the law was inconsistent with the Supreme Court’s 2008 D.C. v. Heller decision that upheld the individual right to keep and bear arms. He also claimed in his dissent that there was no “meaningful or persuasive constitutional distinction” between a semi-automatic handgun and a rifle, and also noted that handguns are used more often than rifles in violent crimes.
At the hearings, Kavanaugh continued to argue in favor of his pro-gun stance when he directly engaged Feinstein: “Semi-automatic rifles are widely possessed in the United States. There are millions and millions that seemed to fit the definition of ‘common use’ and not being a dangerous and unusual weapon.”
Senator Feinstein argued back that by “common use,” she was referring to the actual use of the firearms and not the number of them in circulation with American civilians.
She also went on to state that Kavanaugh’s reasoning in his 2011 dissent was “far outside of the mainstream of legal thought and surpasses the views of Judge Scalia.”
“If the Supreme Court were to adopt your reasoning, I fear the number of victims would continue to grow,” she stated.
While Kavanaugh’s fate remains yet to be determined, his past history as a judge and his direct debate with Senator Feinstein at the confirmation hearings strongly indicate that he would serve as a pro-gun justice if he is indeed confirmed.