XPost: alt.education.research, alabama.politics, alt.politics.usa.constitution.gun-rights
XPost: ca.politics

This week the nation was subjected to an embarrassing and
undignified spectacle of obstructionist partisan politics
surrounding the confirmation hearings of Judge Brett M.
Kavanaugh for the U.S. Supreme Court. The Democrat caucus,
understanding that Judge Kavanaugh is an eminently qualified
jurist with an upstanding reputation and that the votes likely
exist to confirm him, abandoned the norms of the Senate and of
civility and resorted to childish and temperamental theatrics.
This included talking out of order and over their colleagues,
including Judiciary Committee Chairman Chuck Grassley;
encouraging disruptive and illegal protests in the gallery; and
holding up large posters to distract the Judge as he answered
committee members’ questions.

But while such demonstrations are merely obnoxious and juvenile,
the more serious affront arose from committee members who were
either too ignorant or too dishonest to accurately articulate
the law and the facts in their exchanges with Judge Kavanaugh.
Case in point: arch anti-gun Senator Dianne Feinstein, who
grossly exaggerated the criminal use of semi-automatic rifles
and mischaracterized the Supreme Court’s Second Amendment
precedent to attack the nominee for failing to embrace her
political position on gun control.

The exchange came on day two of the proceedings, with Democrats
becoming increasingly frustrated at their inability to ruffle
Judge Kavanaugh or mount any effective resistance to his
confirmation.

Senator Feinstein began by reminding the audience that her
office wrote the federal “assault weapon” ban that was in effect
from 1994 to 2004. It’s notable that her first misstatement of
law concerned her own legislation. According to her, the law
“essentially prohibited the transfer, sale, and manufacture of
assault weapons. It did not at the time affect possession.”

That is plainly untrue. The law did, in fact, ban possession of
the controlled firearms (see page 201 of this link). The law did
not apply to firearms that had been lawfully obtained before the
law’s effective date, but that clause operated as an
“affirmative defense” that put the burden on the accused of
raising the issue at trial. Simply put, anyone found in
possession of a firearm described in the Act was presumptively
in violation of the law and susceptible to federal felony
penalties.

To her credit. Senator Feinstein at least hedged her next false
statement by couching it as a “belief,” rather than outright
assertion of fact. “I happen to believe that [the federal
“assault weapon” ban] did work and that it was important,” she
said.

Unfortunately for her, there is no credible evidence to this
effect. Two government funded studies of the law’s effects in
fact found it had no measurable impact on violent crime. More
recently, a survey of gun control laws by the Rand Corporation
found that the only perceptible effect of assault weapons bans
generally is perhaps a short-term increase in the price of
assault weapons; that in itself does not establish any
beneficial crime reduction effect, however.

Feinstein next took issue with a dissent that Judge Kavanaugh
had written in a case that upheld a D.C. “assault weapon” ban
similar to the expired federal law. Specifically, she chided him
for finding the firearms were “in common use” and therefore
protected under the Supreme Court’s Second Amendment precedent.
“Assault weapons are not in common use,” Feinstein said.

Not only is that assertion not true, it’s the opposite of the
truth. The types of firearms covered by both Feinstein’s now
expired legislation and the current D.C. ban include the most
popular rifles in modern America, including the iconic AR-15.
According to figures compiled by the National Shooting Sports
Foundation for litigation launched in 2013, nearly 4.8 million
AR platform rifles were manufactured in the U.S. between 1990
and 2012, and more than 3.4 million AR and AK platform rifles
were imported during that timeframe. The number of AR-15s
manufactured in 2012 was double the number of Ford F-150 pick-up
trucks sold– the most commonly sold vehicle in the U.S.
Approximately 5 million people in the U.S. own at least one
modern semiautomatic rifle that would be covered by the
Feinstein/D.C. bans and such rifles make up 20.3% of all retail
firearms sales and are sold by 92.5% of retail firearm dealers.
Even media outlets that support “assault weapon” bans
acknowledge that the firearm those bans most specifically target
– the AR-15 – is “America’s rifle.” And the popularity of the AR-
15 actually increased after NSSF compiled these figures, likely
to the tune of millions of new owners.

Meanwhile, rifles of any type – whether or not they would be
included in the Feinstein/D.C. “assault weapon” bans – are used
far less often in murders than handguns, which overwhelmingly
remain the gun of choice for violent criminals. In fact, they
are used far less often, according to FBI statistics, than
“personal weapons” like “hands, fists, and feet.”

Yet even though AR-15s and the like are by all accounts
America’s most popular rifle, Dianne Feinstein insisted during
the hearing that numbers alone do not determine “common use.”
“Common use is an activity,” she said. “It’s not common storage
or possession, it’s use. So what you said is these weapons are
commonly used. They’re not.”

This ridiculous hairsplitting is, of course, contrary to both
common sense and English usage. Common items are routinely said
to be “in use” for a purpose whether or not that involves active
manipulation of the item at any given time. Police “use”
firearms to keep the peace, even when they’re not pointing or
firing them at criminal suspects. Schools “use” fire
extinguishers as part of a general safety plan, whether or not
someone is actively putting out a fire with them. Drivers “use”
seatbelts to safeguard against injuries, even when they’re not
actually colliding with other vehicles or objects. And AR-15s
and similar firearms are “used” by Americans to protect their
homes and loved ones, even when they are providing a deterrent
and not actually being actively employed.

As Judge Kavanaugh very patiently explained, the prevalence of
so-called “assault weapons” in millions of American homes
establishes they are in “common use.” He went on to detail how
that phrase was used by the Supreme Court to distinguish Second
Amendment protected arms from the sorts of “dangerous and
unusual weapons” that are beyond the Amendment’s scope (see p.
55 of this link). A firearm owned by many millions of Americans
may be potentially “dangerous,” he noted, but it is in no way
“unusual” and therefore cannot be said, under the letter of the
Supreme Court’s prior Second Amendment cases, to be unprotected
by that provision.

Responding to Judge Kavanaugh’s own profession of concern about
firearm-related crime, Feinstein then asked him, “How do you
reconcile what you just said with the hundreds of school
shootings using assault weapons that have taken place in recent
history? How do you reconcile that?”

Feinstein’s question (which was actually more of an accusation
that Judge Kavanaugh is oblivious to the toll of firearm-related
crime) was again based on a false premise. There have not been
“hundreds and hundreds of school shootings” in recent history,
much less hundreds using “assault weapons.” Even National Public
Radio has acknowledged that the number of school shootings has
been vastly overstated, including in figures published by the
U.S. government. And not only are AR-15 and other supposed
“assault weapons” rarely used by common criminals, they are not
even the first choice of mass shooters, having been used far
less often than handguns.

Judge Kavanaugh has repeatedly said during this week’s hearings
that he considers himself bound by Supreme Court precedent as an
appellate judge, whether he likes it or not. So it’s perfectly
consistent that he could be horrified by firearm-related crime
but still recognize that lawmakers have to find ways to address
it other than trampling on the Second Amendment rights of law-
abiding Americans. Justice Scalia said as much when he wrote the
Heller opinion, acknowledging the problem of handgun-related
crime but asserting the Constitution takes certain policy
choices – like banning the firearms Americans overwhelmingly
choose for their own defense – “off the table.” That doesn’t
show a lack of empathy but a commitment to the rule of law.

Fortunately, the Democrats’ unseemly theatrics and shaky claims
have merely provided an even sharper contrast for Judge
Kavanaugh’s own dedication to and mastery of the law, as well as
his intellect and composure. There has been very little in the
proceedings that will burnish the reputation of the Senate’s
minority party. But Americans can at least take heart that
President Trump is working diligently to preserve the
competence, effectiveness, and integrity of the federal
judiciary and of the U.S. Supreme Court in particular.

https://www.nraila.org/articles/20180907/anti-gun-senator- distorts-the-law-and-the-facts-in-unsuccessful-attack-on-supreme-
court-nominee
 

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