April 12, 2005


Gun Owners of America has some things you should read concerning the debate over ending the filibuster in the Senate.

I bring all this up because I called Hugh Hewitt's show today & afterwards did some checking up on the subject. I had just glanced at GOA's position on the filibusters but didn't have a chance to examine it in depth. I assumed their position was worth contemplating but I simply lacked the time to give it more than a casual read. I did entertain the thought that their view was based on information that was not accurate or no longer accurate but as it turns out I was mistaken. They oppose the filibuster being ended because it could do serious harm to efforts for fighting gun control legislation. Hugh doesn't see (or agree perhaps) how ending the filibuster could be harmful to gun owners. GOA does & now I do as well.

The first two alerts from GOA are summations of the situation & their views.

Senate Considers Rules Changes That Would Expedite Semiauto Ban Renewal, 50 Caliber Ban

You Guys are Having a Tremendous Impact! -- More calls needed to save our greatest weapon for killing gun control

The last is a very detailed look at what ending the filibuster would entail.

Kill the Filibuster? The "Nuclear Option" and What's Wrong With It

If nothing else I suggest reading the last one.

I called Hugh Hewitt today (I'll try to post a transcript when I find an archived show) to answer a question of his & (not surprisingly) got into an argument. Hugh mentioned a pro-gun group that opposed the "nuclear option" of ending the filibuster. So I called & mentioned that it was Gun Owners of America. I told him I wasn't sure if it was based on outdated info or they saw something that I was unaware of, but the main concern (from what I could recall) was that ending the filibuster of judicial nominees in the Senate would pave the way for an end to all filibusters in the Senate. Then it got a little off track as Hugh argued that the judiciary was the best avenue for defense of the second amendment whilst I argued that there were a lot of gun control bills that were filibustered whereas the judiciary is not on our side. Not surprisingly Hugh then asked if I'd rather have a Bush appointed justice or a democrat appointed justice - in other words who would be better. During the course of this he did accuse me of not thinking rationally (which in all fairness I was a bit distracted & he was correct - I should have drifted the conversation back to the methods being considered rather than the short term outcome). After that I was disconnected (I assume it was a loss of signal on my part).

The trouble with Hugh's position is that he is far too trusting of the Senate. I agree that if we could get a straight up or down vote in the Senate it'd be a good thing, but I don't trust the Senate. I don't trust that ending the filibuster of judicial nominees wouldn't be used as a lever or a path to ending all filibusters. It's possible that it could be limited solely to judicial confirmations but I am not willing to take that risk. The short term goals (have Bush nominees appointed0 don't come close to negating the long term concerns (having no effective filibusters of gun control bills).

It's been pointed out in the GOA links above that having a Conservative appoint a judge does not mean they'll rule pro-gun where they should. & we're not talking about a conservative - we're talking a Republican. Bush is far from being a good friend of gun owners or Conservatives or libertarian leaning Republicans. Even if he were though, several appointees by presidents inarguably more conservative than him have misapplied U.S. v. Miller to the detriment of the 2nd amendment.

But for a moment let's reverse things. Let's assume that Bush's judges would be pro-gun (or more accurately pro-constitution). What happens in '08 if a Democrat sits in the oval office & Democrats control the Senate? A filibuster of "living document" nominees could be the only thing to prevent sending the judiciary into a more leftist spiral than they're currently in.

Still I don't have much faith in the courts no matter who appoints the judges. I don't have much faith in the legislature either, but it's much easier to filibuster (& therefore keep from becoming law) a gun control bill than it is to overturn it once it's law.

To sum up I'd like to see up & down votes of judicial nominees but not at the risk of losing the filibuster. All options on the table seem to risk just that so I'd back GOA's position on it: don't end the filibusters through the options being discussed.

Posted by Publicola at April 12, 2005 06:22 PM

I know that life wasn't made to be easy... but this question is a really hard one.

For a long time I've wanted to get a good case in front of the Supremes, which would reaffirm our Second Amendment rights; but in view of some of the decisions that have been made in the last few years by that oh-so-August body, now I'm glad that they haven't made any such ruling. I fear greatly that the mob of "living" constitutionalists presently in that chamber, who don't seem to be willing or able to refer to the actual words in the Constitution, but who find precedents in other countries law, would determine that the 2nd is no longer in tune with today's reality, and they would find some emanation or penumbra that would seal our fate for a very long time, if not forever.

So while I can see the concern about the filibuster, I reckon that it's much more important to reform the judiciary, and that's got to start by getting some more "originalists" on the bench; otherwise, whatever meaningful gains we might get from the legislature will just be overturned by the Supreme Court, making it up as they go along.

Like I said, it's a hard one; but I am for the so-called nuclear option, even knowing that it is a risk. Letting the judiciary make laws as well as "interpret" them is even riskier.

Posted by: R. Denis Wauchope at April 15, 2005 03:37 PM

This was a really superb blog post - and an insightful analysis of the risks of doing away with the tiny advantage a minority party can possess.

You are correct in stating that the judiciary is an unpredictable, and generally 2nd-Amendment-unfriendly body as a whole. Furthermore, the Republicans always whine about .gov interference on individual rights... until they can impose such controil on somebody they don't like (kind-of like their views on .gov spending) without limit.

Posted by: Libercontrarian at April 15, 2005 09:26 PM

You may not be aware that nobody is proposing to "end the filibuster" for legislation such as gun control legislation. What the "republicans" are proposing, and what "conservatives" such as Hugh Hewett support, is a much more LIMITED idea; ending the filibuster of JUDICIAL NOMINATIONS ONLY.

Which makes sense. This brand-new idea of filibustering nominations (which had been done only once between 1789 and 2003) is making a mockery of the Constitution.

Posted by: Ken Mitchell at April 16, 2005 04:18 PM
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