Since we are heading into the Halloween season, it’s perhaps time for some scary stories.
What does a Kamala Harris presidency look like for gun owners? The long and short of it is that in some respects it’s not as bad as you think. In other respects, it’s so much worse than you think. And the reason why it’s worse fundamentally changes the trajectory of the fight to protect civil liberty almost across the board. So, let us dive into the scenario where Kamala Harris wins in November.
First, what does a Kamala Harris victory look like? The nation is so divided on key issues that the scenario that is nearly impossible is some sort of landslide victory where either side can claim to have a clear mandate. This is very likely to be a narrow victory for either Harris or Trump, which is, in turn, likely to produce the most politically volatile outcome. The rhetoric in the media is likely to worsen in the aftermath of this election. The hostility between parties is likely to increase. And that environment will make it more difficult for either party to enact legislation through Congress.
The path to victory for Kamala Harris would necessarily include winning three critical states: North Carolina, Georgia, and Arizona. Georgia and Arizona are likely going to be very close races, and the two states most likely to drag election night into the following day or days while votes are being tallied. But that scenario would get Harris past the 270-vote electoral college hurdle, assuming every other state plays out exactly as expected. That would likely get her a slightly better than currently expected spread in the national vote total, which she is likely to win even if Donald Trump wins in the electoral college (not that it matters in reality).
What is important to note here is how this outcome squares with Senate races across the country. The current composition of the Senate is 51 Democrats (including three independents) and 49 Republicans. For the Republicans to retake the Senate, they would need a net gain of two seats. In 2024, there are 34 seats up for re-election, 23 of which are held by Democrats. Because of that alone, a very good night for Kamala Harris would likely result in the balance of power in the Senate remaining more or less the same. Given that one of those seats is held by Joe Manchin, who is not seeking re-election, a Harris victory could just as easily coincide with a net loss of at least one seat. Importantly, there are no Senate races on the ballot in Georgia or North Carolina, states where Democrats are being forced to expend a great deal of money and resources. That strengthens the calculus that the absolute best-case scenario is that they maintain their one-seat lead in the Senate. But there is no path in this election to a filibuster-proof majority for Democrats in the Senate. The Democrats would need a net gain of 9 seats to have complete control over law-making for the next four years, and that is simply impossible.
So, even a strong showing for Harris on election day would leave her in a weak position to enact legislation or implement an agenda… and that leads to maybe the first problem for Harris as a candidate. She essentially has no agenda. And that makes her unpredictable. In 2020, Joe Biden was running against an incumbent Donald Trump and, while we can obviously disagree with Joe Biden’s policies, he did in fact have an agenda and vision for the country. He focused heavily on infrastructure spending, fairer tax policies, climate change, and then ultimately ran on an aggressive pandemic response plan. Regardless of what you think of his policies, he had them. Harris is in the awkward position of having to distance herself from the domestic and foreign policy failures of the prior administration. For the moment, Harris falls back on the crutch of just using campaign euphemisms and platitudes to stand in the place of actually presenting policy goals to deal with inflation, immigration and border issues, or the absolute quagmire of foreign policy issues she’ll inherit from the administration she is currently part of. For the remainder of the election cycle, all we will hear is “I am not Donald Trump,” and, “I was raised in a middle-class family….”
That means we have no idea what policies she will actually pursue. No one does. But with a fractured and raucous legislature on Capitol Hill, passing a string of bills to do any of the things she has awkwardly alluded to as policy goals in her campaign is going to be very challenging. So, what can she do on the topic of gun control? The answer is very little. Which is what her predecessor did. And with the case law that has been established by the Supreme Court in both Cargill and Loper Bright, her options for executive action have been severely narrowed or curtailed. What things can she focus on? The President still has pretty broad discretion on areas involving the import and export of arms and ammunition from and to overseas sources. She is likely to use that tool liberally, and there are some ways that policy tool can be effectively used to both increase the price and decrease the availability of private arms and ammunition in the US. An area that the gun control lobby has been working on in recent years has been to focus on the licensing of FFL’s around the nation through both state and federal rules and regulations, and she may well focus on ways to make it harder for FFL’s or manufacturers to conduct business. She is also very likely to use tools like the CDC to fund one-sided research on gun violence to shift the narrative at the state level. While all of that is problematic, that is a much narrower toolkit for implementing gun control than any prior President has ever had.
All the thanks can be given to the state-level and national 2nd Amendment organizations that have been fueling the massive post-Bruen litigation effort at all levels. Thanks to all of that, she simply has very little room to maneuver on the topic of gun control. So, can she ban and confiscate “assault weapons”? Simply put, no. Not through legislation or through executive action. Despite campaign trail promises to the contrary, passing federal legislation that would ban semi-automatic firearms would be impossible to accomplish. Considering the limitations that have been imposed on executive authority to implement regulatory change and the narrowing of the ATF’s ability to unilaterally reclassify things, there is almost no mechanism for an executive order to materially change regulations on that front or to accomplish that goal simply by making ATF or DOJ personnel appointments. That is the good news. The bad news, however, is so bad that it cannot be understated.
What is likely to happen over a four (or possibly eight) year term in office for Kamala Harris is the appointment of two or possibly three Supreme Court justices. And in that scenario, the wave of litigation that has been fueling our fight is over. For a long time. To be clear, a shift in the composition of the Court away from its current conservative, originalist majority will not lead to an immediate reversal of important decisions like Heller, McDonald and Bruen. Instead, the situation will revert back to life the way it was before Bruen (pretty much the entire 20th Century). The risk of bad law resulting from an activist Supreme Court will chill all future litigation.
It will simply be too risky to even try to litigate cases. That entire avenue of attack will be closed, possibly for decades. That will embolden states like California and New York, and we can then expect a wave of state-level legislation that will be much more difficult to challenge in federal courts.
The composition of the Court won’t change overnight. There are some important questions in the hopper in this next term. The Vanderstock case will likely address some important questions regarding arms bans. And there is a strong possibility that the Supreme Court will hear cases on “assault weapons” and “large capacity magazines” before key Justices like Clarence Thomas are put out to pasture. But those rulings will be the parting gifts.
From a civil liberty standpoint, it doesn’t end there. The resentment of left-leaning politicians towards other protections like the right to free speech (John Kerry recently lamented before the World Economic Forum on how that pesky 1st Amendment is a roadblock to solving problems ) and due process is palpable. We have been the most successful part of the freedom movement in America and the bulwark on all essential civil liberties (no civil liberties-oriented movement has been more successful in the past decades than the 2nd Amendment movement). More than any other movement in America, we have stood in the way of the erosion of all the civil liberties we cherish.
Today is October 4th. The election is one month away. I have been advocating for an increase in political activism in our camp. We must do everything possible to get out the vote and promote candidates that support civil liberties including the right to keep and bear arms this fall. Sitting idly by in this election or even showing up on election day to pull a lever is simply not enough.
In the scenario where Kamala Harris wins next month, there is no more sitting back and banking on FPC, GOA, or NRA lawyers saving us in court. That game is unfortunately going to be over, in that scenario. If Harris wins, our only course of action will be to focus every ounce of our effort on the 2025 state elections here in New Jersey and the 2026 midterm federal elections.
We should be doing it now (as in right now. Stop reading this article here and get to work!). But if November goes the wrong way, we will have no choice but to become extremely politically active. It will need to be the singular focus for gun owners for the next several years if we have any chance of saving this movement.
You, the reader, have an important roll to play in what happens next month or during the first four years of a Harris victory. The lawyers will have to take a back seat. And you must step up.
