Kavanaugh Defends Opinion That Assault Weapons Are “Common” and Can’t Be Banned

Watch his testy exchange with a Democratic senator on his controversial position.

Chip Somodevilla/Getty

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In 2011, Brett Kavanaugh wrote a dissent in a case in which he argued that the District of Columbia’s ban on assault weapons was unconstitutional. “A ban on a class of arms is not an ‘incidental’ regulation,” he wrote. “It is equivalent to a ban on a category of speech.” No other court has agreed with Kavanaugh on this front, and other appeals courts have upheld reasonable limits on gun ownership.

On Wednesday, the second day of Kavanaugh’s confirmation hearing to join the Supreme Court, this dissent was front and center as he faced sharp questioning from the Senate Judiciary Committee. 

Sen. Dianne Feinstein (D-Calif.) grilled the nominee about his view that assault weapons couldn’t be regulated, asking what evidence he used to justify his position that assault weapons were “in common use” and thus their ownership was protected by the Second Amendment. 

Kavanaugh dodged the question, saying, “Machine guns can be prohibited.” Feinstein responded, “I think we’re on totally different wavelengths.” She noted that machine guns had long been prohibited and went on to press him on assault weapons, highlighting their use in multiple school shootings in recent years. Feinstein wanted to know what evidence or research he’d drawn on to support his assertion that assault weapons were “common.” Kavanaugh insisted that “millions and millions” of assault weapons were owned in the United States, to which Feinstein replied, “You’re saying numbers define common use?” She expressed skepticism that an assault weapon was something lots of ordinary Americans toted around on a daily basis.

Kavanaugh claimed sympathy to the problem of gun violence, noting that he’d grown up around Washington, DC, which was once known as the murder capital of America. None of that changed his views on gun regulation, though. “This is all about precedent for me,” Kavanaugh told Feinstein, citing the Supreme Court’s 2008 majority opinion in District of Columbia v. Heller, authored by the late Justice Antonin Scalia, which overturned the District’s ban on handguns and firmly established an individual right to own guns. Watch the entire exchange here:

Kavanaugh kicked off the second day of his confirmation hearing amid loud and angry protests from the public, whose noisy objection to his nomination drowned out most of his answers from Sen. Chuck Grassley (R-Iowa), the committee chairman. But most of the protesters had been removed from the room by the time Feinstein launched into her interrogation.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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