Sen. Dianne Feinstein Tries to Rewrite Supreme Court’s Heller Opinion

Senate Supreme Court Sen. Dianne Feinstein, D-Calif., the ranking member on the Senate Judiciary Committee, flanked by Chairman Chuck Grassley, R-Iowa, left, and Sen. Patrick Leahy, D-Vt., right, makes an opening statement at the confirmation hearing of President Donald Trump's Supreme Court nominee, Brett Kavanaugh, on Capitol Hill in Washington, …
AP Photo/J. Scott Applewhite

During day two of the Brett Kavanaugh’s confirmation hearings Sen. Dianne Feinstein (D-CA) tried to redefine “common use” as it applies to firearms.

Feinstein addressed Kavanaugh, saying, “You specifically argued that the DC ‘assault weapons’ ban was unconstitutional, and I think it’s because you said these weapons were in ‘common use.’ On what did you base your conclusion that ‘assault weapons’ are in ‘common use’ and what evidence or study did you use to do that?”

Kavanaugh responded by explaining that “most handguns are semiautomatic.” Because of this, he noted that he could not, in light of precedent, “[distinguish] 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.”

Feinstein quickly sought to shift from “common use” applying to possession or ownership, and suggested that “common use” instead means using the guns for the same purposes.

She asked rhetorically, “You’re saying the numbers [of guns owned] determine ‘common use’?” She then added, “‘Common use’ is an activity. It’s not common storage or possession, it’s use. So what you said is these weapons are commonly used. They’re not.”

Constitutional attorney Mark W. Smith, who is the vice president of the New York City Lawyers Chapter of the Federalist Society and a former member of the Presidential Transition Team of President Donald Trump, had this to say about Feinstein’s argument:

Obviously, possessing an AR-15 or any gun is like possessing an insurance policy or a fire extinguisher.  That fact that you own and possess these items is the same as using these items.  So owning and possessing an AR-15 is the same as using an AR-15. Even assuming Senator Feinstein’s assertion that owning and possessing an AR is different than using an AR, there is ample, undisputed evidence that AR-15s are commonly used by Americans every day.  Americans use AR-15s every day for self-defense purposes, for hunting, in three-gun competitions, for target practice and the like.  A quick search on the Internet would have shown Senator Feinstein that there are thousands of videos of Americans using, cleaning, and demonstrating the uses of AR-style firearms of all stripes and types.

He added:

Let’s think about it another way.  When police officers carry their guns, they are using their guns.  Whether officers unholster or fire their guns is irrelevant to whether they are using their guns.  Most police officers never fire their guns on duty outside of the practice range.  So, would Senator Feinstein say that those police officers who merely carry guns but do not fire them are not using them?  I doubt she would say such a thing because it would be absurd.

Smith concludes that “whether a gun owner ever fires an AR-15 or not, the mere fact that it sits at home ready to be used for self-defense is alone a common use.  And if someone owns and possesses a firearm only as a gun collector, then gun collecting is a use too.”

AWR Hawkins is an award-winning Second Amendment columnist for Breitbart News, the host of the Breitbart podcast Bullets with AWR Hawkins, and the writer/curator of Down Range with AWR Hawkins, a weekly newsletter focused on all things Second Amendment, also for Breitbart News. He is the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at Sign up to get Down Range at



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