LOVERS OF FREEDOM REVEL & REJOICE IN ELECTION SUCCESSES

The Second Amendment’s Great Election Night 2010

by David Kopel

The Second Amendment had a great night on Tuesday.
Across the nation, the right to arms is stronger than ever,
and the stage has been set for constructive reforms in 2011.


U.S. Senate:

The net result of Tuesday was a gain of +6 votes on Second Amendment issues.

In not a single U.S. Senate seat did the gun control lobby gain ground.
Three open seats switched from anti-gun freedom to pro-freedom: Ohio
(Rob Portman replacing George Voinovich), West Virginia
(Joe Manchin taking the seat of the late Robert Byrd), North Dakota
(John Hoeven replacing Byron Dorgan). In Arkansas, John Boozman’s victory
over Blanche Lincoln is a significant gain.

Seats with a partial improvement were Indiana
(Dan Coats usually-but-not-always good, replacing always-bad Evan Bayh),
Wisconsin (NRA A-rated Ron Johnson defeating C-rated Russ Feingold),
Pennsylvania (solid Pat Toomey replacing inconsistent Arlen Specter).

There are now enough votes in the Senate to defeat a filibuster on pro-gun freedom bills.
Significantly, Harry Reid’s victory in Nevada means that pro-gun bills have a chance of being
brought to floor, or offered as amendments to other bills. Had Reid been defeated,
the Majority Leader would have been Charles Schumer or Richard Durbin, both of whom
are highly-motivated and well-informed on the anti-freedom side.

Significantly, a pro-gun freedom Majority Leader can be very helpful in ensuring
that the vast amount of Congressional work that takes place in conference committees,
in the appropriations process, and in late-night amendments to lengthy bills, does not
become an opportunity for the insertion of anti-gun provisions.
Instead, the process can be used to protect rights to personal freedom.

In the new Congress that takes office in 2011, all judicial nominations will have to be resubmitted.
The chance of anti-Second Amendment law professor Goodwin Liu taking a seat on the 9th Circuit
now appears slim.

Should Obama have the opportunity to pick another Supreme Court Justice, the possibility of defeating
an anti-rights nominee is improved, but far from certain.



U.S. House:

The House already had a strong, bipartisan pro-Second Amendment majority, and that majority
has grown even larger. By my calculations, the pro-freedom side gained about 18.75 votes on Tuesday.
I count an A-rated winner replacing a D or F as +1, replacing a C as +.5, and replacing a B as +.25.

The unpopularity of Obama’s program caused the defeat of many Democrats in swing districts.
In every single case in which an A-rated Democratic incumbent was defeated, he was replaced
by an A-rated Republican.

There were only two districts in which advocates of gun control improved their positions:
In New Orleans, C-rated Republican Joseph Cao was unseated by F-rated Cedric Richmond,
and in Honolulu Charles Djou (A) was defeated by Colleen Hanabusa (F).

In every other race where the new Representative has a different position than the old one,
the result is an improvement for Second Amendment freedom, with A-rated Republicans defeating
or taking open seats from Democrats who had a B, C, D, or F. These districts include: Ariz. 5; Ark. 2;
Fla. 2, 8, 22, 24; Ida. 1; Ill, 14, 17; Kan. 3; Mich. 7; Minn. 8; Nev. 3; N.H. 1; N.J. 3; N.Y. 13, 19;
N.C. 2; Ohio 1, 15; Penn. 3, 7, 8; S.C. 5.; and Wash. 3.

Overall, candidates endorsed by the NRA Political Victory Fund won 85% of their House races,
and 19 of 25 Senate races.

The results put the pro-gun side within striking distance of being able to override a presidential veto.
Much more importantly, the Republican takeover puts the House leadership, and the chairmanship
of every relevant House Committee, into pro-gun freedom hands.

The means that pro-liberty bills have a much improved chance of getting floor votes.
Among the most important such measures are modernization and reform of the Bureau of Alcohol,
Tobacco, Firearms and Explosives; national reciprocity of concealed handgun carry licenses;
and reform of the District of Columbia’s onerous and expensive gun licensing system—a system
which aims to discourage rather than regulate the exercise of a constitutional right.

The most crucial committee for the Second Amendment, House Judiciary, will be chaired
by Texas Republican Lamar Smith, rather than by Michigan Democrat John Conyers.
This means that pro-Second Amendment bills will get committee hearings, and will have
a strong chance of being reported out of committee. It means that the Judiciary chairman’s office
will no longer be used a propaganda platform for the gun prohibition lobbies.
Caveat: Smith is drug war zealot, and has pushed numerous anti-drug proposals which have harmed
the entire Bill of Rights. The war on guns and the war on drugs have always reinforced each other.

Use of the federal tax power in the 1930s as a pretext to create federal laws over local criminal issues
was tried with the National Firearms Act of 1934, and then expanded to the Marihuana Tax Act of 1938.
Conversely, use of the interstate commerce power to criminalize purely intrastate possession and use
of an item was the product of the Gun Control Act of 1968, followed by the Controlled Substances Act
of 1970. The whole “assault weapon” panic of 1989 never would have turned into a major issue for
the next fifteen years if not for Republican Drug “Czar” William Bennett linking it to the drug war.

Constitutionalists should be very wary of any new bill from Rep. Smith to expand federal criminal
powers beyond their already-excessive scope, a scope which is far beyond proper constitutional boundaries.


State constitutions:

Politicians come and go, but constitutions endure.
Sometimes courts properly enforce the rights guarantees in constitutions, but even when judges neglect
their duties, the written text of a constitution promotes right-consciousness among the public,
and thereby provides a rallying point for pro-rights activists in the political process.

No better example of this could be found than the Second Amendment itself.
Ignored or denigrated by lower federal courts in the latter half of the twentieth century,
the Second Amendment still informed and inspired the American people,
who were usually successful at protecting the Second Amendment right
through the political process. Finally, the federal courts caught up
to the political will of the public (and to the original meaning
of the Second Amendment), and began taking the right seriously.

Thus, the most important victories on Tuesday for the right to keep and bear arms were those
in the state constitutions. In Kansas, the right to keep and bear arms had been included in the
1861 constitution—no surprise, since only a few years before, a territorial government under
the control of the slave power had confiscated guns from free-soilers in the infamous
“Sack of Lawrence.” This confiscation was denounced by the great anti-slavery Senator Charles Sumner
(R-Mass.) in his speech “The Crime Against Kansas.”

Sumner thundered:
“Really, sir, has it come to this? The rifle has ever been the companion of the pioneer and, under God,
his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon
more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution
must be blotted out, before the complete right to it can in any way be impeached, and yet such is the
madness of the hour, that, in defiance of the solemn guaranty, embodied in the Amendments to the
Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’
the people of Kansas have been arraigned for keeping and bearing them, and the Senator from
South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course,
that the fanatics of Slavery, his allies and constituents, may meet no impediment. Sir, the Senator
is venerable . . . but neither his years, nor his position, past or present, can give respectability to
the demand he has made, or save him from indignant condemnation, when, to compass the wretched
purposes of a wretched cause, he thus proposes to trample on one of the plainest provisions of
constitutional liberty.”

Yet in 1905, the Kanas Supreme Court nullified the state constitutional right to arms,
by declaring that the right belonged to no individual, but was simply an affirmation of state government
power over the state militia. In dicta, the Salina v. Blaksley decision said that the Second Amendment
had the same meaning. This is the origin of the “state’s right” or “collective right” theory of the
Second Amendment which was accepted by many judges and academics (but never by the American people)
during the following century.

Last night, the people of Kansas undid the court’s crime against the Kansas Constitution.
By a vote of 88 percent, the people of Kansas added the following to their state constitution:
“A person has the right to keep and bear arms for the defense of self, family, home
and state, for lawful hunting and recreational use, and for any other lawful purpose.”


Governors and state legislatures:

For Governors, the situation is mostly the same as it was before.
With only a few exceptions retiring pro-liberty or anti-gun governors were replaced
by a similar newcomer.

On the debit side: Rhode Island’s usually pro-gun Republican Governor retired,
and was replaced by the strongly anti-liberty independent Lincoln Chafee.
Ohio Democratic Governor Ted Strickland, who had truly earned his A+ rating,
was defeated by John Kasich, who has a mostly good record on guns,
but has never been a leader on the issue like Strickland.

In Hawaii, moderately pro-gun Linda Lingle retired, and will be replaced by F-rated
Neil Abercrombie.

Uncertain: The uncalled races for Governor in Illinois, Minnesota, and Oregon all involve
significant differences between the candidates on Second Amendment rights.
The Republican currently leads in Oregon.

On the credit side:

In Wisconsin, a pro-rights Republican replaced a retiring Democrat who had twice vetoed
concealed handgun licensing. Even while the legislature was under Democratic control,
it came within a single vote of over-riding the veto. Both houses of the Wisconsin legislature
went Republican last night, making it almost certain that Wisconsin will become the 41st State
to provide a fair, non-arbitrary system for law-abiding, trained citizens to be issued licenses
to carry handguns for lawful protection.

Second, in Pennsylvania, Tom Corbett (A-rated) will be taking over from Ed Rendell,
who as Governor and as Philadelphia Mayor was a highly-engaged anti-gun freedom activist.
The Keystone State was the key battleground this year between Second Amendment advocates
and New York Mayor Michael Bloomberg. The latter invested half a million dollars in advertising
to support anti-gun candidates, and Bloomberg has a very active lobbying operation in the state
and local governments.

The Tuesday Pennsylvania results were a catastrophe for Bloomberg. He lost the statewide races
(wins by Toomey and Corbett). He lost two U.S. Representatives in swing districts
(Bryan Lentz in Penn. 7, and Patrick Murphy in Penn. 8). The one Pennsylvania incumbent Republican
U.S. Representative who was considered to be endangered was Charlie Dent; he defeated a challenge
from a mayor who belongs to Bloomberg’s group Mayors Against Illegal Guns.

Republicans already had the Pennsylvania Senate, and they took the Pennsylvania House.
The gun control agenda has no hope in the next two years in Pennsylvania, and the chances for
positive legislation are very good, starting with enactment of the “Castle Doctrine,” to protect the rights
of crime victims to use firearms against violent attackers, and without having to retreat before using force.

Republicans also took the Alabama House and Senate (1st time since 1876), Colorado House, Iowa House,
Indiana House (they already had the Senate), Maine Senate, Michigan House (already had Senate),
Minnesota House and Senate, Montana House, New Hampshire House and Senate, New York Senate,
North Carolina House and Senate (1st time since 1870), and Ohio House (already had Senate).

Further, in the Texas and Tennessee Houses, small Republican majorities were replaced by enormous ones.
Overall, not since 1928 have the Democrats lost so many state legislative seats, according to
the National Conference of State Legislatures.

Certainly there are many pro-gun freedom Democrats, and there are some anti-gun Republicans,
but in general, Republican gains usually result in Second Amendment gains. For example, the switch in
North Carolina provides an opportunity to enact Castle Doctrine, to end the ban on licensed carry in
certain places such as public parks, to fix a law that bans gun carrying during a declared “emergency”
(such as a big snowstorm), and to reform a handgun licensing system left over from Jim Crow.

In Texas, the odds are much improved to enact a law allowing licensed citizens to carry firearms
at colleges and universities, so that these places will no longer be safe zones for mass murderers.
Utah already has such a law, with not a single instance of any problem resulting from licensed carry.
The passage and success of such a law in Texas, with its enormous system of state higher education,
would provide a major boost to reform laws in other states.

Since 2011 will be the redistricting year, the pro-gun gains last night will have effects for a decade
to come. Finally, the Republican gubernatorial wins in Pennsylvania, Ohio, and Florida will likely
make it more difficult for Obama to carry those crucial states in 2012, and without them, he has
no realistic path to re-election. On 2012 may hinge the fate of the Supreme Court, for Obama has
already shown that he will appoint Justices who oppose a meaningful, enforceable Second Amendment,
and who support drastic restrictions on the First Amendment rights of Second Amendment groups—such
as the campaign speech censorship provisions which were declared unconstitutional by a 5-4 vote in
the Citizens United case.