November 05, 2020
Let’s assume for a moment that Former Vice President Joe Biden will be elected as the 46th President of the United States. A majority of the polls going into the election were wrong, but Biden clearly has the advantage as of this writing, Thursday, November 5, 2020. Though it is still mathematically possible for President Trump to win reelection, it appears increasingly unlikely.
The U.S. Senate is the only part of America’s legislative process that can prevent the passage of the gun-control proposals that are sure to follow a Biden victory. Can Democrats win the Senate majority? What would that mean for America’s gun owners?
Currently, there are 53 Republicans in the U.S. Senate, 47 Democrats and two Independents who caucus with Democrats. In the event of a tie, the vice president casts the deciding vote. Senators serve six-year terms and there are 35 seats up for grabs in 2020. There were competitive Senate races in Alaska, Arizona, Colorado, Georgia, Iowa, Kansas, Maine, Montana, North Carolina and South Carolina. If the results stand, Republicans won in Alaska, Georgia, Iowa, Kansas, Maine, Montana, North Carolina and South Carolina. Democrats won in Arizona and Colorado. One of the two Georgia seats will be subject to a special election since no candidate reached the state’s 50 percent threshold. The Michigan race was closer than pundits predicted, but it appears as if the incumbent Democrat, Sen. Gary Peters (D-MI), will win by a thin margin.
Republicans were on the defense in 2020, fighting to hold incumbent and open seats in many states. Tens of millions of dollars gave Democrat candidates the advantage. The only vulnerable senator on the Democratic side of the aisle was Sen. Doug Jones (D-AL), who won Alabama’s 2017 special election by a slim margin over a politically damaged, and former chief justice of Alabama’s Supreme Court, Roy Moore. Jones works in the private sector, unless he’s appointed as attorney general by a possible “President Joe Biden.” A win for Republicans would mean the Democrats would gain one vote in the U.S. Senate.
About the pre-election polls. FiveThirtyEight, a respected political analytics firm led by statistician Nate Silver, ran 40,000 computer simulations on 2020’s U.S. Senate races based on available data. In 76 out of 100 scenarios, the computer model predicted that the Democrats would hold a majority of the U.S. Senate in January 2021. The Cook Political Report, another stalwart in the business of predicting elections, expected a Democrat majority in its latest analysis. As it stands now, those predictions were inaccurate. It appears, for now, the U.S. Senate will remain safely in Republican hands.
If presidential candidate Biden wins and Democrats achieve a majority in the U.S. Senate, they would control both Executive and Legislative branches of government. In summary, Democrats would get to make the laws. What might those laws look like? In February 2019, the U.S. House of Representatives passed two gun-control bills; the Background Check Act of 2019 (H.R. 8) would impose universal background checks on private sales. H.R. 112 would lengthen allowable delays in the current NICS background check system. Neither of these bills were considered in the Republican-controlled U.S. Senate, which effectively killed their chances of passage. Similar bills would pass if Sen. Chuck Schumer (D-NY) was promoted to Senate Majority Leader.
Surprisingly, the U.S. House of Representatives has not passed a semiautomatic firearm or magazine ban during House Speaker Nancy Pelosi’s (D-CA) leadership, though restrictive bills have been introduced. A person can make the assumption that, unlike the background check bills, the House knew that the Senate would never consider them, and President Trump wouldn’t sign such a bill. That would change if the majority shifts to the Democrat’s favor. Based on public statements made by Senate Democrats, it is extremely likely that both chambers would enact a semiautomatic firearm ban during the first few months of a Biden presidency.
Candidate Joe Biden’s website endorses many gun-control measures, including a proposal that would restrict many of our nation’s most-commonly owned firearms. His gun-control credentials are strong, as he was the author of the 1994 ban on so-called “assault weapons” and magazines holding more than 10 rounds that stood for a decade. Biden also supports repealing the law that shields firearm manufacturers from predatory and frivolous lawsuits that could bankrupt the gun industry. A President Joe Biden will sign any gun-control bill that lands on his desk.
And the filibuster? Senate Rule 22, which has been on the books since 1917, requires a supermajority of two-thirds of the senate (60 votes) to invoke cloture, which ends debate on a bill. Democrats are unlikely to achieve the necessary for a cloture vote, but there’s an end-around nicknamed the “nuclear option.” This twist of Senate rules has been applied to Executive and Judicial Branch nominees, but there’s nothing other than tradition and decorum preventing it from being used to pass substantive legislation.
Speaking of judicial-branch nominees, a change in the U.S. Senate’s majority would be significant when considering judicial appointments. In the event that President Trump wins reelection, but Republicans lose the Senate, the president would have a tough time getting his nominations for the federal bench approved. These judges would be America’s only defense if various gun-control measures become law.
Regarding the term “court-packing.” With the recent approval of Justice Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg, the U.S. Supreme Court has ideologically shifted to the right. This 6-3 majority of Republican-appointed justices could repeal legislation attacking American’s Second Amendment rights, but a Roosevelt-era proposal to change the composition has re-emerged since Justice Ginsburg’s passing. There is nothing in the U.S. Constitution preventing the Senate from altering the number of justices who sit on the Supreme Court. By increasing the number of justices, Democrats could alter the ideological majority. This is something that Sen. Schumer appears to support: “Let me be clear,” Sen. Shumer said, “if Leader McConnell and Senate Republicans move forward with this [the Barrett confirmation], then nothing is off the table for next year. Nothing is off the table.”
Every four years, we hear the tired mantra, “This is the most important election of our lifetime.” This year, that statement is probably truer than ever for gun owners. A Biden victory will be bad news for gun owners, but losing the Senate would be catastrophic. The U.S. Senate, our stopgap against gun-control legislation since former President Barack Obama’s administration, would be nothing but a rubber-stamp for the whims of the U.S. House. The question is, “How bad could it be?”
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