Editor's Note: This piece was co-authored by Joseph Olson.
Last week, President Trump claimed the election will determine the future of private gun ownership in the United States. On Saturday, the NRA tweeted out that a Biden win “will destroy our Second Amendment.”
They are right. If Democrats gain control, Joe Biden and Senate Democrats promise a radical change in the Senate by eliminating the filibuster, which will allow them to pass any legislation that they want with a simple majority vote.
This year, the Democrat’s convention platform is focused on a radical gun control agenda. It advocates licensing for gun owners, allowing gun makers to be held liable whenever someone uses a gun to commit a crime or cause an accident, and banning some types of semi-automatic guns based on appearance rather than on function.
But the Senate won’t just determine what gun control legislation gets passed — it will also determine what judges get confirmed. And there are few issues that divide Democrat and Republican-appointed judges more consistently and completely than gun control.
President Trump's 53 federal circuit court confirmations have only just brought the courts into balance, with Democrat-appointees still controlling circuit courts for 24 states plus DC. The DC circuit court is considered the second most important court after the Supreme Court.
The states Democrats control judicially are ones that they also tend to control legislatively. These circuit courts approve any and all of the gun control regulations that get passed, no matter how flagrantly they infringe on the right to keep and bear arms.
The Supreme Court isn’t restraining these courts. All four Democrat appointees claim that people don’t have a right to self-defense. Indeed, they have already noted they will vote to overturn the court’s 2008 Heller and 2010 McDonald decisions, and one more Democratic appointment would give them the chance to do so. Those rulings merely ensured the government could not completely ban guns.
Four Republican-appointed justices clearly care about the right to self-defense. But they won’t take up gun control cases for fear that Justice John Roberts will side with the liberal justices. He has already done so on cases concerning religious freedom, DACA, and Obamacare.
There are five states where the average of the latest polls show less than three percentage points separate the Republican and Democrat Senate candidates –Iowa, Maine, Michigan, Minnesota, and Montana. All these states have traditionally had strong support for the right of self-defense. But the betting odds show the senate right now will end in a 50-50 tie, which means whoever wins the presidency will determine who controls the Senate.
Take Minnesota. Both of the states’ Senators have shown where they stand on judicial nominations. Senator Amy Klobuchar voted to confirm Supreme Court Justices Elena Kagan and Sonia Sotomayor, who do not believe there is an individual right to self-defense. She opposed Brett Kavanaugh and Neil Gorsuch, who support that right.
Senator Tina Smith, who is in a very tight race with her Republican opponent, former Congressman Jason Lewis, has only been in office since 2018, but her votes on other judges show that she clearly would have voted the same way as Klobuchar. All the other Democrats in the five other states will vote similarly.
Michael Bloomberg’s Everytown for Gun Safety has endorsed Smith as a “staunch advocate” for gun control regulations. In 2019, Smith joined other Democrats in attacking the NRA’s “influence on our political system.” But she has no concerns about Bloomberg’s efforts. While the NRA spent $18.9 million on all campaigns in 2018, New York billionaire Michael Bloomberg put up $110 million just for congressional campaigns. Bloomberg spent even more than that on state legislative races across the country.
California shows us what the future of gun ownership can look like under Democrat leadership. No one has even figured out how to meet the state’s requirement for micro-stamping — a technology by which firing pins will supposedly imprint a unique identifying code on each shell casing. Even if someone could implement this expensive technology, a criminal could circumvent it by simply filing down the pin or replacing it. But handguns that don’t meet these unrealistic and ineffective regulations will soon be banned.
Unless Trump fills another Supreme Court vacancy, California’s restrictions will likely be upheld.
The Americans in these states that will determine control of the Senate cherish their freedoms. It would be ironic if they provide the deciding votes that kill the Second Amendment and Americans’ right to defend themselves and their families.
Lott is the president of the Crime Prevention Research Center and the author most recently of “Gun Control Myths: How politicians, the media, and botched ‘studies’ have twisted the facts on gun control.” Olson is professor emeritus at the Mitchell-Hamline School of Law in St. Paul.
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