tv Sen Feinstien Questions to Judge Kavanaugh CSPAN September 5, 2018 12:29pm-12:48pm EDT
why did i rule for somebody that was involved in september 11? it's because the law compelled it, just like texas showed up in the texas versus johnston case. we don't make decisions based on who the people are, policy preferences, we rule based on the law. it means you're not a pro -- as i said yesterday, you're not a pro plaintiff or pro defense judge, not a pro prosecution or pro defense judge. i'm a pro law judge, and i've ruled for parties based on whether they have the law on their side. that's part of being an independent judge, is ruling for the party no matter who they are so long as the party is right. if you walk into my courtroom and you have the better legal arguments, you will win. >> i wanted to talk to you this morning about guns and go back to roe v. wade, if i might. my office wrote the assault
weapons legislation in 1993. it was law from '94 to 2004. it essentially prohibited the transfer, sale and manufacture of assault weapons. it did not at the time affect possession. i happen to believe that it did work and that it was important. and i've watched case after case, and i think i mentioned earlier school shootings, which are just -- i never thought this would happen in our country, that someone would bring a semiautomatic assault weapon into a school and just mow down children and staff. and so i've been very interested in your thinking on assault weapons. you specifically argued that the
d.c. assault weapons ban was unconstitutional, and i think because you said these weapons were in common use. what did you base your conclusion that assault weapons are in common use, and what evidence or study did you use to do that? >> thank you, senator feinstein, for the question. i understand, of course, your role on that issue and your long leadership on that issue and appreciate that. i faced a decision where, as in every other decision just about on the d.c. circuit, i had to follow a precedent, the precedent of the supreme court. i don't get to pick and choose which supreme court precedence i get to follow. i follow them all. and so in the second amendment context, the supreme court in the heller decision, written by justice scalia, had held that there was an individual right to keep and bear arms.
and then in explaining what that meant and what exceptions would be allowed to that right, justice scalia's opinion for the court in part 3 of the opinion went through, this does not mean that there is no gun regulation permissible. so that was an important part of the opinion, part 3 of the supreme court's opinion. where it pre-identified a number of exceptions that would be allowed. felony possession laws, concealed carry, laws possession of mentally ill, possession in schools, possession in certain kinds of buildings. he pre-identified that. as to the weapons, the way i understood what he said there and what was said in the mcdonald's case later was that dangerous and unusual weapons could be prohibited.
and what he referred to specifically is machine guns could be prohibited. so it's very important to recognize under the heller decision, machine guns can be prohibited. >> they were in the firearms act a long time ago. they had been prohibited. >> yes, senator. justice scalia's opinion did not disturb that longstanding regulation, in fact, specifically reaffirmed that machine guns could be prohibited. the court in heller, the supreme court, upheld -- or struck down a d.c. ban on handguns, mostly which are semiautomatic. >> let me interrupt you because i think we're on totally different wavelengths. i'm talking about your statement on common use, as common use being a justification, and assault weapons are not in common use. >> in justice scalia's opinion,
to use that phrase, 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 d.c. ban on handguns. now, most handguns are semiautomatic. that's something that not everyone appreciates. most handguns are semiautomatic. the question came before us of semiautomatic rifles, and the question was, can you distinguish, as a matter of precedent -- again, this is all about presence dent fcedent for. i'm trying to read what the supreme court says, and if you read the mcdonald case, i concluded that it could not be distinguished as a rule of law semiautomatic handguns. 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 being a dangerous and unusual weapon. that was the basis of my descent. in a nutshell, the basis of my descent was i was trying to follow strictly and carefully the precedent. >> you're saying the numbers determine common use? common use is an activity. it's not common storage or possession, it's use. so what you said was that these weapons are commonly used. they're not. >> they're widely possessed in the united states, senator, and they are used and possessed, but the question is are they dangerous and unusual? they're certainly dangerous, all weapons are dangerous. are they unusual? and given how prevalent they are in the united states, it seemed under justice scalia's test, and if i look at the majority of the
opinion in mcdonald, the same thing. i want to reiterate the supreme court made clear machine guns can be banned. >> i'm talking about the heller case. let me be specific. you specifically argued that it was unconstitutional to defend assault weapons because they are -- to ban assault weapons because they are in common use. and that, i believe, was your descent dissent in the case. >> yes, and i was referring to some kinds of semiautomatic rifles that are banned by d.c. and are widely owned in the united states. and that seems to be the test that the supreme court had set forth in the heller and mcdonald cases. in other words, if another type of firearm is widely owned in the united states -- now, whether i agree with that test or not was not the issue before me. i have to follow the precedent of the supreme court as it's
written, and that's what i tried to do in that case. it's a very long opinion. i also made clear, senator feinstein, at the end of the opinion -- i am a native of this area. i'm a native of an urban suburban area. i grew up in a city plagued by gun violence and gang violence and drug violence, so i fully understand, as i explained in the opinion, the importance of this issue. i specifically referenced that police chief kathy waneir's goals of reducing gun violence was something i applauded but i had to follow the precedence of the supreme court, and as i read it, that's what it said. >> 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? >> senator, of course the violence in the schools is something we all detest and want
to do something about, and there are lots of efforts, i know, underway to make schools safer. i know at my girls' school they do a lot of things now that were different than they did just a few years ago in terms of trying to harden the school and make it safer for everyone. guns -- handguns and semiautomatic rifles are weapons used for hunting and self-defense. but as you say, senator, you rightly say they're used in a lot of violent crime and cause a lot of deaths. handguns are used in lots of crimes that result in death and so are semiautomatic rifles. that's what makes this issue difficult, as i said, in the last two pages of my dissent in heller. i fully understand the gang violence, gun violence, drug violence that has plagued various cities, including washington, d.c. this was known as the murder
capital of the world for a while, this city. and that was a lot of handgun violence at the time. so i understand the issue, but as a judge, my job, as i saw it, was to follow the second amendment opinion of the supreme court. whether i agreed with it or disagreed with it, at the end of the opinion i cited texas versus johnson's quote that i read yesterday as a guiding light for lower court judges and all judges. just some of the testimony from earlier today in the confirmation hearing of supreme court nominee brett kavanaugh. the hearing expected to continue here live shortly. the senators just taking a break. the chair says they plan on returning in another 15 minutes or so as they head to the senate floor for a vote. also as a reminder, we'll be showing that day's testimony in the evening at 8:00 p.m. live.
we'll have that on c-span2. the chair said he expects the hearing to last about four days. tomorrow more confirmation of the nominee is expected. we'll follow that on c-span3. john dean, who served as white house counsel atwat watergate. he was called to testify about the abuse of protective power. the hearing is expected to resume shortly.