During Supreme Court Justice Brett Kavanaugh's 2018 confirmation hearing, Sen. Dianne Feinstein (D–Calif.) asked him to "reconcile" his conclusion that "assault weapon" bans are unconstitutional with "the hundreds of school shootings using assault weapons that have taken place in recent history." It was a classic Feinstein moment, combining her steadfast support for arbitrary gun laws with blatant misinformation and a logical non sequitur.
Feinstein, who died Thursday night at age 90, wrote the 1994 federal "assault weapon" ban, which prohibited the importation, manufacture, distribution, and possession of semi-automatic guns that she falsely claimed were uniquely suitable for mass murder. Although the distinctions drawn by that law never made much sense, Feinstein was determined to reinstate the ban after it expired in 2004, proposing a series of new, supposedly improved versions. Her dedication to a logically, practically, and constitutionally dubious gun control policy was of a piece with her diehard support for the war on drugs, her embrace of mass surveillance in the name of national security, and her willingness to restrict speech protected by the First Amendment, all of which reflected her consistently authoritarian instincts.
Feinstein's exchange with Kavanaugh was a window into the way she thought about public policy. Feinstein demanded an explanation for Kavanaugh's dissent from a 2011 decision in which the U.S. Court of Appeals for the D.C. Circuit upheld the District of Columbia's "assault weapon" ban. As he noted in that opinion, the D.C. law (like Feinstein's bills) covered a "haphazard" set of arbitrarily selected guns "with no particular explanation or rationale for why some made the list and some did not." Kavanaugh concluded that the ban was inconsistent with District of Columbia v. Heller, the 2008 case in which the Supreme Court recognized that the Second Amendment guarantees an individual right to armed self-defense.
As Kavanaugh explained to Feinstein, Heller says the Second Amendment protects the right to keep handguns for self-defense, while allowing that bans on "dangerous and unusual" weapons—firearms that are not "in common use" for "lawful purposes"—would be constitutional. "Most handguns are semi-automatic," Kavanaugh observed. "The question was can you distinguish, as a matter of precedent," between semi-automatic handguns and semi-automatic rifles. He noted that "semi-automatic rifles are widely possessed in the United States; there are millions and millions." To Kavanaugh, that meant the guns that Feinstein wanted to ban were "in common use" for "lawful purposes" such as self-defense and hunting, so possession of them was protected by the Second Amendment.
But Feinstein was not actually interested in Kavanaugh's legal reasoning. "How do you reconcile what you've just said with the hundreds of school shootings using assault weapons that have taken place in recent history?" she asked. In addition to wildly inflating the actual number of mass shootings at schools (with or without "assault weapons"), the question was nonsensical. Although handguns are by far the most common kind of weapon used in firearm homicides (including mass shootings), the Supreme Court in Heller nevertheless had upheld the constitutional right to own them for self-defense. There is obviously a difference between the empirical question of how often a particular category of firearms is used to commit crimes and the legal question of whether that category is covered by the Second Amendment.
Feinstein either did not understand or was determined to obscure that distinction, preferring an emotional appeal to anything resembling a constitutional argument. She showed the same impatience with legal niceties in a 2013 exchange with Sen. Ted Cruz (R–Texas), who had the temerity to join Kavanaugh in questioning the constitutionality of her pet legislation. "I'm not a sixth-grader," she said, objecting to Cruz's "lecture." Although "I'm not a lawyer," she added, "I've been up close and personal to the Constitution." But aside from her suggestion that "assault weapon" bans fell under "exceptions" recognized in Heller, Feinstein's purported intimacy with the Constitution did not yield any relevant insights.
Feinstein instead appealed to her personal experience with gun violence, starting with the day in 1978 when Dan White used a revolver to kill San Francisco Mayor George Moscone and Supervisor Harvey Milk. "Senator, I've been on [the Senate Judiciary Committee] for 20 years," she said. "I was a mayor for nine years. I walked in. I saw people shot. I've looked at bodies that had been shot with these weapons. I've seen the bullets that implode [sic]. In Sandy Hook, youngsters were dismembered." In short: If you think Americans have a right to own guns that can be used to kill innocent people, you hate children and want them to die.
When it came to drug policy, Feinstein was equally undaunted by facts and logic. She not only pushed the pseudoephedrine restrictions that have incommoded cold and allergy sufferers across the country without having any impact on methamphetamine use; she joined Sen. Chuck Grassley (R–Iowa) in proposing legislation aimed at the mythical threat of candy-flavored meth. She not only opposed legalization of recreational marijuana in California; she worried that the Justice Department was not responding aggressively enough to legalization in Colorado and Washington.
Even on medical use of marijuana, which 38 states currently allow, Feinstein did not yield an inch. In 2015, she was the only Democrat on the Senate Appropriations Committee who voted against a spending rider that bars the Justice Department from interfering with such laws.
Feinstein argued that the violence fostered by prohibition was a good reason for the government to redouble its efforts to discourage drug use. She was ever eager to expand the war on drugs, whether the target was imitation marijuana or Four Loko.
In addition to gun violence and drug abuse, Feinstein worried a lot about national security, an area where she likewise displayed little concern for civil liberties. She dismissed revelations about the National Security Agency's mass, warrantless collection of information about Americans' telephone calls, saying it was "just metadata." She thought WikiLeaks founder Julian Assange should be prosecuted for publishing classified information of clear public interest, even though that is something journalists who cover national security routinely do. Caught up in the hysteria about Russian trolls, she warned social media companies they had better "do something" about "disinformation," or else "we will." Combining two of her interests, she said anyone "appropriately suspected" of involvement in terrorism should lose his Second Amendment rights based on "a reasonable belief" that he "may" use a gun "in connection with terrorism."
Based on her votes, the Institute for Legislative Analysis reports that Feinstein adhered to a "limited government" position 5 percent of the time. The best that can be said about her long career as a politician is that she pursued policies she honestly thought would work in the name of causes she genuinely cared about. But her good intentions produced positions that almost always seemed to err in favor of more government power and less individual freedom.
The post On Guns, Drugs, and National Security, Dianne Feinstein Was Consistently Authoritarian appeared first on Reason.com.
