Constitutional Law

Post election prospects

A comment, as I recall (it was a busy working weekend) sought an assessment of the legislative picture, post-election.

The indicators seem to be that Obama wins. They're neck and neck in popular vote, but he's got the electoral college advantage. Real Clear Politics shows it as Obama 278, McCain 132, toss up 128. Main change in last 48 hours has been
leaning Obama" States moving into "toss ups," so it's not a sure thing. Clearly the Demos will increase their House and Senate majorities.

Whoever wins, I'd expect at the outset a "close the gun show loophole" push. If Obama wins, it's obvious, and if McCain wins, might as well set him up to sign it or back off from his past position.

Beyond that, I'd guess not too much at the outset. They'll have four years, and in that time there will be something newsworthy. A mass shooting. Or just homicide rates rising (they're cyclical, and we're coming out of the lowest levels in 20 years). At that point, anything is possible. They can give the yellow dogs a pass -- vote against, or don't vote -- and still enact whatever they want. The only limitation will be how much they can get past Harry Reid as Senate leader.

And the courts will be packed. People look at the Supremes, but there's also all the lower federal courts. The Dems have been blocking confirmations for years, with the result that something like a third of all lower court slots are open. Those will quickly be filled. I doubt that the 2A will be a litmus test, but the tests that will be applied (upholding government programs so long as they steer clear of the First Amendment, etc.) will tend to pick people unfriendly to the 2A.

Full post as published by Of Arms and the Law on November 03, 2008 (boomark / email).