The Senate Fillibuster and the Second Amendment

Dean Weingarten in front of the Supreme Court

The filibuster in the United States Senate is not created by the U.S. Constitution. It exists because of Senate rules. From early in the history of the Senate, the ability of Senators to talk for unlimited amounts of time was used as a tool to slow down legislation, as a bargaining chip to gain concessions on bills, or to stop bills altogether. This extended use of "debate" became known as a filibuster.

For decades there was talk about changing the Senate rules to limit debate, but nothing was done until 1917, during the Wilson administration. In 1917, the Senate adopted Senate Rule 22, which allowed a 2/3 super-majority in the Senate to close debate and force a vote on an issue.  The cloture vote was only used five times over the next 40 years. In 1975, the Senate changed the rule from requiring a 2/3 super-majority of the senators voting to end debate, to a super-majority of 3/5 of all senators correctly chosen and sworn in. A cloture vote to limit debate has come to require 60 votes. Use of the filibuster limited by a cloture vote has become more and more common over time.  It has become a primary way for the party in the minority in the Senate to stop controversial bills.

The Senate rules can be changed with a simple majority vote. When the Democratic Party controlled the Senate in 2013, Majority leader Harry Reid orchestrated a rule change to exempt votes of all nominees except for the Supreme Court from the 60 vote requirement for cloture. When the Republicans took control of the Senate, they expanded the exemption to include all nominees.

Currently, a vote to stop debate in the Senate requires 60 votes for legislation. An exemption exists for budget reconciliation, as required in the Budget Reconciliation act of 1974. Limits on the time for debate are included in the act, which prevents a filibuster.

The filibuster has been used to stop and slow down gun control legislation and to stop and slow down legislation to restore Second Amendment rights. The filibuster does not appear to have been used in attempts to stop the gun control act of 1968. The Brady Act of 1993 was slowed by use of the filibuster, but was not stopped. The Universal Background Check gun control bill promoted by President Barack Obama in 2013 failed to overcome a the filibuster by Republicans.  The vote was 54-46. The 2022 gun control bill had to overcome a filibuster. Cloture passed with 65 votes.  It was a relatively weak bill.  In 2025, removal of short-barreled rifles, short-barreled shotguns, silencers, and Any Other Weapons (AOW) was stymied because of inability of Second Amendment supporters to overcome a Democratic Party filibuster.

The filibuster is a strong tool to slow down legislation, facilitate compromises, and limit governmental action.  Support for the filibuster by Senators Kyrsten Sinema of Arizona and Joe Manchin of West Virginia has been credited from preventing draconian measures proposed by far left Democratic politicians in 2021. Both Sinema and Manchin were purged from the Democratic Party, in large part for their support of the filibuster.

President Trump has called for Republican senators to eliminate the filibuster. His logic is clear: The next time Democratic politicians control the Senate, they will eliminate the filibuster. Republicans should pre-emptively do so in order to pass legislation to cement the Trumpian counter revolution against radical leftism. President Trump wants to end the filibuster in order to stop the current government shutdown. Senator Ron Johnson of Wisconsin explains this.  From newsmax.com:

"The Democrats purged the last two senators who held out and supported the filibuster," he said. "We know they have no respect for it. So we need to strike first."

Johnson said if Republicans move first, it should be "for the benefit of the American people."

"When the Democrats eliminate the filibuster, it'll all be about their maintenance of power," he said.

"If we're to do it, it will be to further secure our border, to secure our elections, and to pass good pieces of legislation," Johnson added. 

He also warned Democrats would "pack the Supreme Court" and push for statehood for Washington, D.C., and Puerto Rico if they regain control of the Senate.

The Senate has two senators for each state. For decades, far more Democratic Senators than seemed warranted came from what were expected to be "conservative" states such as Montana and North Dakota. In the last 20 years, states have tended to sort themselves out more consistently. This is likely because the left no longer has unquestioned dominance in the media. Conservative dominance in the Senate seems probable in the future.

The Republicans have both senators in the 25 states which voted for Donald Trump in all three of his presidential elections.  This makes control of Congress by the Democratic Party very difficult. The Senate was designed, in part, to protect small states from being made politically irrelevant by large population states.  Control of the Senate by the Democratic Party is probably diminished for at least a few years.

Legislation is important, but court decisions tend to be more durable. It is harder to overcome Supreme Court decisions than to pass legislation. The protection of the filibuster is less important if the Supreme Court has an originalist majority, such as currently exists.

Packing of the Supreme Court has been supported by the Democratic Party to overcome the originalist majority.  To do this, they need control of Congress. They need to overcome a filibuster in the Senate. They can eliminate the filibuster anytime they have a majority in the Senate, so continuing the filibuster is not much of a protection against radical leftists.  As Sinema and Manchin demonstrated, it has some value.

Analysis:

If the Senate Republicans eliminate the filibuster, they open the door to pass more of President Trump's agenda, more quickly. The potential of pro-Second Amendment legislation passing increases somewhat. Is this potential worth the loss of the protections of a filibuster? This correspondent tends to approve of limitations on government power. Limitations which are only applied to Republicans are worse than no limitations.  It is a close call. This correspondent would keep the filibuster in hopes the radical left Democratic party is rejected by voters, at least in the Senate.

 

©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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