The Second Amendment’s Great Election Night

NewLedger.com

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 to pro-gun: 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).

If Dino Rossi wins Washington (he currently trails by 14,000, with 62% of the vote in), that will be another important pickup.

There are now enough votes in the Senate to defeat a filibuster on pro-gun 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-gun side.

Significantly, a pro-gun 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.

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 appear slim.

The Second Amendment continues to hang by a single vote in the Supreme Court, thanks to Sonia Sotomayor deceiving her way through the confirmation hearings, and then voting to overturn District of Columbia v. Heller. There is little reason to expect Elena Kagan to be any better.

Should President Obama have the opportunity to pick another Supreme Court Justice, the possibility of defeating an anti-rights nominee are 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-gun 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 President 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 gun control advocates improved their position. 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 the Second Amendment, 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 hands.

The means that pro-rights 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 permits; 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. The American people 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.”

As of November 1, there were 10 state constitutions which guaranteed the right to hunt and fish. The right was part of the Vermont Constitution of 1777, and nine more states had added the right, beginning in 1996.

Advocates of explicit protection of the right argue that the best time to constitutionalize an important right is while there is still a strong social consensus, and before enemies of the right gather enough strength to destroy it. And the right to hunt and fish is under attack in both the United States and Europe from a misguided faction of the animal rights movement, based on the incorrect notion that human who harvest and eat game are not part of cycle of nature. The hunting prohibitionists are heedless of the last century of successful game management which has ensured that game species thrives and that has protected wildlife habit all over America.

For the long-term survival of the Second Amendment, a social base of people who participate in hunting is essential. People tend to be the most politically-engaged in support of the rights which they actually exercise.

So on election night, the citizens of Tennessee, Arkansas, South Carolina, and Arizona had the opportunity to vote on right to hunt and fish amendments. The language in Tennessee declared:

“The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state’s power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species.”

The amendment passed with approximately 90% in Tennessee, Arkansas, South Carolina. But in Arizona, it lost 56-44%, thanks to a misleading advertising campaign from the Humane Society of the United States. This organization has nothing do with operating animal shelters, as local humane societies do, but is instead dedicated to the extermination of hunting, and to the imposition on the public of an ascetic lifestyle which is voluntarily followed only by a small minority.

Constitutional reforms do not always win on the first try. On Tuesday, Arizonans added a right to health care choice to their state constitution, even though a similar proposal had been defeated in 2008. So Arizonans may have another chance to protect their rights, in a subsequent election.

What Tuesday’s results mean for certain is that there are now three more states (13) with explicit constitutional protection for the right to hunt and fish, plus one more (43) with explicit protection of the individual right to keep and bear arms. (Not counting Massachusetts, where the right was judicially nullified in the 1976 case Commonwealth v. Davis.)

Governors and state legislatures: For Governors, the situation is mostly the same as it was before. With only a few exceptions retiring pro- 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-gun independent Lincoln Chafee. Ohio Dem. 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 to provide a fair, non-arbitrary system for law-abiding, trained adults to be issued permits 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 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 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 adults 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 President 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.

The 2010 election results do not mean that Second Amendment rights are permanently secure. But they are safer today than they were two days ago, and Tuesday’s results significantly increase the opportunity for the enactment of a wide range of rights-protective state and federal laws in 2011.

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