In case you hadn’t noticed, there’s a presidential election in less than a month. Every presidential race since 2004 has carried some fear of gun control with it, but not since 2012 have we seen such elevated concerns about further restrictions of our Constitutionally protected right to bear arms. The purpose of this article isn’t to inspire fear, but rather offer a realistic analysis of the potential gun control scenarios that could result from the 2020 election.
In crafting the 2020 Election Gun Control Analysis, we first have to understand the landscape at the federal level. In the House of Representatives, the Republicans would need to flip 17 seats to take over control of the House, which has about a 3% chance of happening. The Senate is a different story; the odds-makers are calling it a toss up about which party will be in control of the Senate after the election. The Presidential race is similarly close, with Mr. Biden enjoying a lead over President Trump in polling. But, Hillary Clinton enjoyed a similar lead, and everyone remembers 2016. Last, there’s President Trump’s pending appointment of Amy Coney Barrett to the Supreme Court; which as of this writing seems like it will go through, but isn’t guaranteed.
Potential gun control threats are outlined in Joe Biden’s “PLAN TO END OUR GUN VIOLENCE EPIDEMIC.” It’s important to remember that these policy positions are a lot like a letter to Santa Claus: they contain goals that the candidate/party would want to do if they got their way all the time, but are infrequently representative of actual policies enacted. For the sake of analysis, we will make two assumptions: Ms. Barrett’s nomination to the Supreme Court will be confirmed, and Biden wins the Presidency. We’ll look at the potential gun control scenarios that could result with either a Republican held Senate or a Democratic controlled Senate.
Overturning the Protection of Lawful Commerce in Arms Act:
The reason this is listed first is because Mr. Biden lists it first on his platform, and also because it’s the greatest existential threat to our continued ability to shoot guns. The PLCAA is a law that protects manufacturers of firearms and ammunition from frivolous lawsuits. This law was passed to stem the tide of organized lawsuits filed by activist groups and anti-gun states; those lawsuits had the goal of overwhelming the industry with litigation and driving manufacturers out of business. Overturning the PLCAA has been on the Democrat party wishlist for some time.
If the Democrats take control of both houses of Congress, the 2020 Election Gun Control Analysis expects to see them try to overturn the PLCAA or to gut it and make it toothless at defending the industry. The latter choice is the most plausible, because overturning the law may trigger a Constitutional challenge, which I believe the Democrats will want to avoid given the odds of a 6-3 court ruling against them. Gutting the law is easier to do, attracts less public scrutiny, and has a smaller chance to end up before an unfriendly Supreme Court. It seems workable that given a Democratic controlled Senate, there will be a serious attack on the PLCAA. If the Republicans keep the Senate, regardless of who sits in the White House, PLCAA will be safe.
A new Federal AWB:
If Republicans keep the Senate, the risk of a new federal AWB is low. While then-President Biden could certainly use executive action to restrict certain imports, a fully fleshed out assault weapons ban is DOA in a Republican Senate.
In a Democratic controlled Senate, it’s a much more interesting story. Even if the Democrats win the Senate, no one is predicting a landslide. If traditionally “red state” seats flip for Democrats, those same Democrats will be vulnerable in the next election if they ram an AWB down their constituent’s throats. Another brake on the Democrat’s ambitions to ban “assault weapons” is the Supreme Court. It’s possible that Democrat strategists would avoid a sweeping AWB like California or New York’s because such a law would face a Supreme Court challenge. If a federal AWB gets tossed 6-3, the trickle down effects also jeopardize any state level bans.
But, a Democrat majority could also perceive a Senate and Presidential win as a mandate, and go ahead with attempting an assault weapons ban. In this event, I would expect a new ban to be worse than the 1994 Ban, but not as aggressive as California’s legislation, to avoid a Supreme Court challenge.
Background Check Expansion and Red Flags:
The most plausible and most dangerous avenue for attack on our gun rights is via Universal Background Checks and Red Flag laws. I rate these laws as the highest probability of happening regardless of who controls the Senate. The problem with arguing against these laws is that the arguments against them are subtle and nuanced, and can’t effectively compete with smooth sound bytes. Most people don’t understand that we already have a robust background check system, and that UBC laws make an already illegal act…more illegal. The same is true with red flag laws, which are easy to message as a public safety measure and difficult to message against.
Republicans in the past have been notoriously soft on these policy issues, and these laws have a better chance to survive court challenges, since Heller does allow for certain amounts of gun control. I think that this will be the avenue of attack that is pursued the hardest by a Joe Biden presidency.
If Mr. Biden wins in November, there will be an attack on gun rights. The ATF reclassified a certain model of arm brace as a stock, and is seeking to reclassify other products. The California DOJ is suing the ATF to reclassify 80% lowers as guns, and we haven’t reached November yet. While a Republican controlled Senate will stave off the worst attacks, we’ll still face challenges as gun owners over the next four years if Joe Biden wins in November.