by David Kopel
The New Ledger, Sept. 27, 2010. More by Kopel on the 2010 election.
Will the 2011 Senate be friendlier to the Second Amendment than the current Senate? While the 2010 election will result in gains for Republicans, both parties contain pro-rights and anti-rights candidates. In 2006 and 2008, this meant that the anti-Republican deluge did little harm to the net numbers of Second Amendment supporters in Congress.
While some conservatives wish that the NRA would not support pro-gun Democrats, the long-term survival of the right to keep and bear arms depends on gun rights having friends in both major parties. We saw what happened during the George H.W. Bush administration, when the White House believed that gun owners had nowhere else to go, and so Republicans could triangulate to support some anti-gun laws.
This year, if N = the number of Republican Senate gains, then the pro-gun gain will probably be more than ½ N, but less than N. This gain could be significant, because it would produce enough pro-rights Senators to defeat a filibuster. On the other hand, if 2011 brings us a Democrat-controlled Senate with a Majority Leader other than Harry Reid, pro-Second Amendment bills will never get a vote.
So moving from East to West, let's examine the races, taking into account the NRA grades that the candidates have received in present or past elections.
An important caveat: NRA grades are not based on a pure quantitative system—as when voting correctly a particular percentage of the time would always lead to a particular grade. Rather, the grades take into account the candidate's whole career, with greater weight given to the more recent record. An A+ can only be earned with a record of leadership on the issue. If there is a "Q" after a grade, it means that the grade is based only on the candidate's response to the NRA questionnaire, and the candidate has not previously held on office in which she acted on firearms policy.
New Hampshire: Retiring Republican Judd Gregg was rated C in 2004. The Republican nominee for this open seat is former Attorney General Kelly Ayotte, who joined 22 other State AGs in 2009 to write to Attorney General Holder in opposing a new ban on so-called "assault weapons." However, she also fought against proposed "Castle Doctrine" bill in the New Hampshire legislature to safeguard the right of people to use firearms against home invaders. The Democratic nominee is Paul Hodes, who got an A- when he ran for re-election to the House in 2008.
Vermont: Incumbent Democrat Pat Leahy looks unbeatable against businessman Len Britton. Leahy's record on the issue has been mixed, with lots of bad votes in the early 1990s, a D rating in 2004, and a better performance in more recent years. In any case, gun owners are far better off with him as Judiciary Committee Chair than with Herb Kohl (Wisc.), who would take over if Leahy lost. In case of a Republican takeover, Jeff Sessions (Ala.) would be the chair, and he has been a strong leader on the issue.
Connecticut: Retiring Democrat Chris Dodd has been, like his father Senator Tom Dodd, both corrupt and adamantly anti-gun. Connecticut Attorney General Richard Blumenthal, the Democratic nominee, has been a leader in abusing the rights of gun owners. Not only did he sue the firearms industry in 1999, he even threatened to bring criminal charges against gun companies for allegedly discussing among themselves whether they should refuse to join a surrender agreement that Smith & Wesson signed with Andrew Cuomo's Department of Housing & Urban Development. (Happily, the agreement never went into effect, and S&W has since changed owners.)
Blumenthal, as an activist, would be even worse than Dodd. His Republican opponent is former professional wrestling promoter Linda McMahon. McMahon's website has a terse statement: "America has a long history of gun ownership, and I fully support 2nd Amendment rights."
New York: Charles Schumer appears set to win a third term. In the Senate and in the House, he has been a very effective anti-gun leader.
Kirsten Gillibrand is also up for election. While she was A-rated by the NRA in the House, she has proven that Schumer was canny in convincing N.Y. Governor David Patterson to appoint her to Hillary Clinton's seat. Gillibrand has completely switched sides on the issue, and on guns, as on everything, amounts to nothing more than an echo of Schumer.
Republican nominee Joe DioGuardi served in the U.S. House so long ago that his NRA ratings are not online. DioGuardi is cross-endorsed on the Conservative Party line, which usually indicates strong support for Second Amendment rights. To almost everyone's surprise, he has made the race competitive.
Pennsylvania: A clear choice here. Republican Pat Toomey has a solid record on guns. Democrat Joe Sestak had an F in this 2008 House race. Defeated party-switcher Arlen Specter had an erratic record during his five terms.
Delaware: Appointed Sen. Ted Kaufman (D) is retiring. Establishment Republican Mike Castle was rated F, and this grade actually understates how bad he was on the Second Amendment. There is probably no Republican in the current Congress who has taken more of a leadership role in promoting gun control than Castle. His record was arguably worse than Joe Biden's. In the current Congress, he is the lead House sponsor of Michael Bloomberg's bill which would create the structure for federal registration of most retail gun sales.
Democratic nominee Chris Coons so far appears to have nothing to say on firearms policy, although given his self-description (while in college) as a Marxist, one might infer that he is an enthusiast for a government monopoly on the means of force.
Christine O'Donnell received an AQ and the NRA endorsement, which may have put her over the top in the primary. Even if presume that Coons will wins the seat, keeping Castle out of the Senate is still progress for gun owners.
Maryland: Anti-gun Democrat Sen. Barbara Mikulski (D) is running for a 5th term. She appears to face no serious challenge.
Net result from the Northeast: Let's say that New Hampshire's Gregg was a .5 (on a scale of 0 to 1), and any of his replacements is a .9, which we'll round up to 1.0; so we get a net gain of .5 pro-rights vote from New Hampshire. If we give Specter a .5, then the Toomey-Sestak result would lead to a gain or loss of .5. A win in Connecticut or New York, would be an unexpected bonus. So let's estimate a net +1 from the Northeast, with potential for a net 0 (if Sestak wins) or a +3 (if Toomey and DioGuardi win and Blumenthal loses).
West Virginia: To replace Robert Byrd, Democratic Gov. Joe Manchin (A) is facing an unexpectedly tough race with Republican businessman John Raese (AQ). Byrd had a terrible record on the constitutional right to arms, particularly considering the state he represented. Whichever party wins in November, West Virginia is a guaranteed pick-up for gun rights.
North Carolina: Republican incumbent Richard Burr (A in 2004) vs. Democratic Secretary of State Elaine Marshall. Burr appears to be secure.
Alabama: Alabama's Richard Shelby (R) is running for a fifth term, while South Carolina's Jim DeMint (R) and Georgia's Johnny Isakson (R) is running for a second terms. All of them had an A in 2004, and none appears to face a serious challenge.
Florida: Pro-Second Amendment Mel Martinez retired, and his appointed replacement George LeMieux is not running. Governor Charlie Crist, who had an A+ in the 2006 gubernatorial race, is campaigning as an independent. The Republican nominee is State House Speaker Marco Rubio (A in 2006 Fla. State House re-election). Democrat Kendrick Meek received a D+ during his 2008 U.S. House re-election race. The Crist/Rubio polls have been very volatile, but as long as Meek doesn't pull an upset, the seat stays in pro-gun hands.
Louisiana: Republican incumbent David Vitter (A) faces Blue Dog Democrat Charlie Melancon (A in 2008 House re-election).
Kentucky: Republican nominee Rand Paul is solid on the Second Amendment issue. The Democratic nominee is Attorney General Jack Conway, who joined the amicus brief in McDonald v. Chicago, arguing that state and local governments should have to obey the Second Amendment. Retiring Republican Sen. Jim Bunning had a fine record on gun rights, so this is a seat that will stay pro-gun.
Arkansas: Democratic incumbent Blanche Lincoln has improved her voting record during her time in the Senate, but she looks nearly hopeless against U.S. Rep. John Boozman (A in 2008).
Net result from the Southeast: A +1 from West Virginia. Boozman is more likely than Lincoln to consistently vote pro-gun even if political winds shift in favor of gun control.
Ohio: Retiring Republican George Voinovich (D in 2004) almost always voted wrong. Polls show Republican Rob Portman, who compiled a solid record in the U.S. House (A in 2004 House re-election) opening up a lead on Democrat Lee Fisher (F in 2006 Lt. Gov. win). Fisher has previously served as a Board member of Handgun Control, Inc., which at the time was the nation's leading gun control lobby. (Now supplanted by Michael Bloomberg's organization "Mayors Against Illegal Guns.")
Indiana: Retiring Democrat Evan Bayh had a good record when he was Governor, and a terrible one as Senator. Democratic nominee Brad Ellsworth has a perfect record (A in 2008 House re-election). Republican nominee Dan Coats voted right more often than not, during his olden days in the Senate, but he provided the crucial vote for the "assault weapon" ban; he also voted for the Brady Bill. Coats appears to be running away with this one.
Illinois: Appointed Sen. Roland Burris is retiring. So Barack Obama's old seat will go either to Republican Mark Kirk (F in 2008 House re-election) or to Democrat Alexi Giannoulias. Both are strongly anti-gun.
Wisconsin: When Democrat Russ Feingold was elected in 1988, he started off consistently voting for gun control. In the twenty-first century, he has improved significantly. His race against businessman Ron Johnson is a toss-up, and NRA has not yet graded this race. Feingold has been running radio ads criticizing Johnson's endorsement (later retracted) of licensing gun owners.
Iowa: Republican incumbent Charles Grassley (A in 2004) looks safe against lawyer Roxeanne Conlin.
Missouri: Sen. Kit Bond (R) is retiring. Republican Representative Roy Rlunt (A in 2008) vies with Democratic Secretary of State Robin Carnahan. In 1999, Carnahan ran the campaign opposing Proposition B, which would have enacted a law to allow for the licensed carry of concealed handguns by persons who passed a background check and a safety class. Carnahan's campaign asserted that licensed carry was "too dangerous for Missouri families." The Missouri legislature enacted licensed carry in 2003, and experience since then has proven that Carnahan was quite wrong.
Blunt's lead is not large, and so Missouri represents this year's best chance that anti-gun forces to gain a Senate seat.
Oklahoma: Sen. Tom Coburn (R) (A in 2004) is will easily win re-election. He has been a very active leader on gun rights.
Kansas: For this open seat, Republican Jerry Moran (A in 2008 House reelection) has a gigantic lead over Democrat Lisa Johnston.
South Dakota: Pro-gun Republican incumbent John Thune is unopposed.
North Dakota: Retiring Democrat Byron Dorgan (D+ in 2004 Senate re-election) had an especially bad record in light of the state that he represented. Republican Governor John Hoeven (A+ in 2008 gubernatorial reelection) has a wide lead over Democrat Tracy Potter. Count this is a certain pickup for gun owners.
Net results from the Midwest: Start off with +2, thanks to Indiana and North Dakota, with an additional potential +1 from Ohio, balanced by a possible -1 from Missouri.
Colorado: Democrat Michael Bennet was appointed to fill the vacancy created by Ken Salazar ascending to Secretary of Interior. In Bennet's brief tenure, he has voted right every time on legislation, but voted wrong on the confirmation of Justices Sotomayor and Kagan. Notably, the Washington Post reported that he voted for national reciprocity of handgun carry licenses only after Charles Schumer gave him permission, because Bennett's vote was not needed to sustain a filibuster. Bennet is also a co-sponsor of the Michael Bloomberg bill, S. 843, which would impose harsh restrictions on firearms stores, facilitate national gun registration, and allow the Attorney General to shut down gun shows.
In the polls, Bennet is not far behind Weld County District Attorney Ken Buck, who is strongly pro-Second Amendment.
Arizona: John McCain got a C for his 2004 Senate reelection, but has a much better record since then. He seems ready to coast to a general election victory.
Utah: Defeated incumbent Robert Bennett never voted wrong but, unlike Orin Hatch, rarely exercised leadership on gun rights. Republican nominee Mike Lee is a former Supreme Court clerk, an almost certain winner in the general election, and likely to be a pro-Second Amendment leader.
Idaho: Republican incumbent Mike Crapo represents his state well by always voting right, and he faces no serious challenge.
Washington: Democratic incumbent Patty Murray (F in 2004 reelection) is in a close race with former Republican gubernatorial candidate Dino Rossi (A in 2008 gubernatorial bid). A Rossi win would be a significant pickup for gun owners.
Oregon: Incumbent Democrat Ron Wyden (F in 2004) has a comfortable lead over Republican John Huffman (A in 2008 state house reelection). Wyden has almost always been on the wrong side; but to his credit, in 2009 he took a leading role in enacting a statute which stopped the Customs Service from implementing a regulatory interpretation which would have banned the import of most folding knives.
California: To her credit, incumbent Democrat Barbara Boxer (F in 2004) led the fight on the armed pilots issue. Other than that, her performance has been terrible. Republican businesswoman Carly Fiorina has no record, but was good enough on the Second Amendment to earn Sarah Palin's endorsement.
Alaska: Defeated incumbent Republican Lisa Murkowski voted right but did not lead. Republican nominee Joe Miller, like Murkowski, received an A in the primary. Democrat Scott McAdams' website includes a sentence in which he says he strongly supports the Second Amendment.
Hawaii: Democratic Sen. Daniel Inouye (F in 2004) is running for a 9th term, and appears nearly sure to win.
Net results: Let's guess that Buck wins in Colorado, and that the Republican wins one of the two close races in California and Washington. Net result would be an overall +1.5.
National net: The middle-of-the-road estimate would be a total of +5.5, and a plausible best-case scenario of +10. The middle estimate would provide enough votes to defeat filibusters, and the +10 could be enough to defeat vetoes.
Now for the unique case of Nevada: Ay, there's the rub. Senate Maj. Leader Harry Reid (D) is running for a 5th term. Reid (B in 2004, and improvement since then) has been a good friend of gun owners during the twenty-first century—as he was during most his time in the Senate, except for the Clinton presidency. He was a sine qua non for passage of the 2005 Protection of Lawful Commerce in Arms Act, which ended the abusive anti-gun lawsuits brought by Blumenthal, Bloomberg, et al. As Majority Leader, he has worked with the NRA on numerous issues behind the scenes, to keep anti-gun measures from being snuck into appropriations bills or inserted in conference reports. He is the reason that the Organization of American States' anti-gun CIFTA treaty has never been brought to floor for a ratification vote.
When Reid gets behind a pro-gun bill, he does not merely vote for it; he also works the Senate floor effectively.
Republican opponent Sharon Angle earned an A in 2004 and 2002 for her state assembly reelection campaigns.
If Reid is defeated, but the Republicans gain fewer than ten seats, the new Majority Leader will be Charles Schumer or Dick Durbin. There have been anti-gun Majority Leaders before—such as Tom Daschle. But never has there been a Majority Leader who was a strongly committed and well-informed anti-gun activist. Such a Leader can help sneak anti-gun provisions into other bills. Unfortunately, since Senators these days do not read bills before voting on them, the potential for mischief is tremendous.
In contrast, Majority Leader Reid's staff has been very helpful in warning Second Amendment supporters about all attempts of anti-gun legislators to use backroom maneuvers to harm the Second Amendment.
In sum: Whatever the size of the pro-gun gains in the Senate, the Second Amendment may be worse off in the 2011-12 Senate if Charles Schumer or Dick Durbin are in charge. Anti-rights legislation would be assigned to committees where it will get favorable and highly-publicized hearings, and be ready for floor action if circumstances gave it a chance of passage.
Thus, a Republican gain of less than 10 seats, coupled with the defeat of Harry Reid, could leave Second Amendment rights in the Senate in a worse position than today. The good news is that, unless the President decides to invest significant political capital, there would be little chance for passage of anti-gun legislation.
Dave Kopel is Research Director of the Independence Institute, a think tank in Golden, Colorado.
