The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.” La. Const., art. I, sect. 11. The new language made it indisputable that the state constitution’s right to arms was an individual right, belonging to each citizen.

Unfortunately, Louisiana’s Supreme Court, like some other courts of the late 1970s, was hostile to the right to arms. According to a 1977 Louisiana Supreme Court decision, “The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” State v. Amos 343 So.2d 166, 168 (La. 1977).

It was unexceptional for the court to observe that the right to arms is no more “absolute” than any other right. But the court went much further, and essentially stripped the Louisiana arms right of any meaningful judicial protection. According to the Amos court, any form of gun control was constitutional, as long as it was “reasonable.”

In 2001, the Louisiana Supreme Court affirmed a lower court ruling that held: “The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard court cited Louisiana state and federal cases from 1986 through 1999 for this proposition.

So Blanchard adopted an even weaker standard of right to arms protection than had Amos. Under Blanchard, any restriction is alright so long as the government has a “legitimate” purpose.  Blanchard‘s legitimate purpose test copies one prong of the weakest standard of judicial review, the “rational basis” test, which was originally created for Fourteenth Amendment Equal Protection cases. Under this test, every law is constitutional so long as the government has a “legitimate” purpose, and the law has a “rational” connection to that purpose.

Fortunately, gun control has not been politically popular in Louisiana in recent decades. So even though the state’s courts have essentially nullified the constitutional right to arms, Louisiana’s firearms statutes are not, in general, oppressive.

In the November 2012 referendum, Louisiana citizens will be given the opportunity to remedy the wrong decisions in Blanchard and Amos. Voters can adopt new constitutional language: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.”

If adopted, the referendum would make two direct changes:

1. For the first time in Louisiana, concealed carry would be constitutionally protected. This makes sense, because in the 21st century (unlike in the 19th), concealed carry is most common way that Louisiana citizens exercise their right to carry handguns for lawful protection. Like most other states, Louisiana has a statutory system by which concealed carry permits are issued under fair and objective standards.

2. The judicially-imposed “legitimate purposes” test (the weakest test) of judicial review would be replaced by the strongest test: strict scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

Louisiana would be the first state to write the “strict scrutiny” standard into its constitution. This would become the model in other states for significantly strengthening protection of their own constitutional right to arms. So it is unsurprising that the proposed amendment is strongly supported by the National Rifle Association, the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the most pro-right to arms Governor in Louisiana history, and a national leader on the issue.

Surprisingly, some people in Louisiana are opposing the Amendment on the grounds that it supposedly promotes anti-gun laws. For example, at this website, the author remains invincibly ignorant, even when the facts are patiently explained an attorney from the Louisiana Shooting Association. The website author wants to live in a world of absolute rights. Be that as it may, Louisiana today is not a state of absolute rights; it is a state where the right to arms essentially does not exist, as a matter of state constitutional law, as mis-interpreted by state courts. The amendment would remedy the misinterpretation, and make it drastically harder for future courts to uphold anti-gun laws.

A victory for the Louisiana referendum will profoundly strengthen the right to arms in Louisiana, and have significant positive effects nationally. A defeat would validate the actions of previously Louisiana judges in recent decades who deigned that the right to arms was unworthy of judicial protection.

This morning on 850 KOA’s Mike Rosen Show, two of our senior fellows joined Mike in studio to discuss the lawsuit against our Taxpayers Bill of Rights (TABOR). Officially called Kerr v. Hickenlooper in federal court, the suit attempts to kill TABOR in Colorado because it allegedly violates our United States’ Constitution’s guarantee clause. The guarantee clause, ehem, guarantees us a “republican” form of government. No one expected the lawsuit to go very far and indeed, it came as quite a surprise when one of our federal judges allowed the suit to proceed.

Now we defenders of the TABOR amendment are left scratching our heads wondering how this could be, and curiously, whether there is any merit to the case. That’s where senior fellows Penn Pfiffner of our Fiscal Policy Center and Rob Natelson of Constitution Studies come in. In their 30 minute segment on the Mike Rosen program, they explain the background of the case, why it matters, and most importantly, why it’s total bunk (and deserves to be thrown out).

When any tragic event erupts anywhere around the country involving a firearm, our Research Director and Second Amendment scholar Dave Kopel is in high demand for commentary. Below you’ll find the synopsis of Dave’s commentary on the Aurora theater shooting thus far. I’ll continue to update this page as more comes out.

Aurora Theater Shooting Coverage:

PBS News Hour.
July 23, 2012. Kopel appears at 4:04, at start of a 10 minute segment.

Colorado Inside-Out.

Patricia Calhoun, Mike Littwin, April Washington, and Kopel discuss the Aurora murders. July 20, 2012. 27 mins.

Postgame: more on the murders.

Don’t turn Aurora killer into celebrity. USA Today.
July 19, 2012.

Kopel and Eugene Volokh quoted in New York Times, on Colorado gun laws.
July 20, 2012.

Brady Campaign staff and Kopel webchat on USA Today. July 19, 2012.

Size of ammunition cache not unusual, say gun experts.
By Joey Bunch. Denver Post. July 22, 2012.

Kopel and Piers Morgan agree: Thursday would have been the better day for a gun control debate. CNN. July 19, 2012. Transcript.

CNN Reliable Sources. Howard Kurtz bemoans “a troubling thing that television does,” namely the rush to “turn such an atrocity into ideological fodder while the victims are still being treated.” As an example, plays Morgan/Kopel interchange, with Morgan insisting a gun control debate must take place on the night of the crime. July 22, 2012. Transcript. Video.

A Land Without Guns: How Japan Has Virtually Eliminated Shooting Deaths.
By Max Fisher. The Atlantic. July 23, 2012. Discusses Kopel’s article on Japanese gun control. (Spanish text of the article available here.) The article is an excerpt from a chapter in Kopel’s book The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? The book was named Book of the Year by the American Society of Criminology, Division of International Criminology.

Public health leaders ‘afraid to say guns’. By Katie Kerwin McCrimmon and Diane Carman. Health Policy Solutions. July 24, 2012.

Tuerie d’Aurora: armes à feu à profusion. By Nicolas Bérubé. La Presse (Montreal). July 23, 2012.

Denver sörjer offren efter skjutningen. Swedish National Radio. July 22, 2012.

USA’s vapenlagar ohotade trots Denver-skytten. Swedish National Radio. July 22, 2012.

NPR: Talk of the Nation, hosted by Neal Conan. July 25, 2012.

The religious and conservatives among us might not want to hear this, but I think it’s important to point out. Our Constitutional scholar Rob Natelson just wrote on the contraceptives and Catholic Church controversy. Many are making a First Amendment case against the Obamacare mandate forcing the church to provide products and services they find immoral. After all, the First Amendment protects religious freedom. However, Rob disagrees with this particular defense. He writes,

Does the mandate forcing Catholic hospitals to offer abortifacients and contraception violate the First Amendment? The surprising answer is: Probably not.

Read Rob’s constitutional arguments on his blog. You might be surprised to see that not all religious refuge can be taken in the First Amendment. A big thanks goes out to Rob for being true to objective constitutional scholarship – even if it means not giving an answer people want to hear.

I remarked the other day that Amy Oliver and Michael Sandoval of our Energy Policy Center have been doing some fantastic work lately. Not sure why energy policy doesn’t get as much play as other policy areas but I certainly think energy is sexy. Their latest article scrutinizes the Obama administration’s love affair with China. The relationship is not simply a trade friendly “I give you something, you give me something” type of deal. It has more to do with China’s rare earth minerals and the ability of said minerals to produce “renewable” energy – which Amy and Michael once again prove is anything but green (and often times deadly).

We just released a new Issue Paper that tackles the perennial question: how much are we taxed here in Colorado? Many on the Left presume it’s not enough. When our researcher Anthony Gonzalez really dug into it and looked at the whole picture (state AND local taxation), Colorado it turns out sits right in the middle of the nation at 26th. Take a look at our first Issue Paper of 2012, How Colorado’s Tax Burdens Rank Nationally.

In his latest blog post, our Constitutional scholar Rob Natelson shares his thoughts on the recently signed into law National Defense Authorization Act (NDAA). Many believe the NDAA codifies the Executive Branch’s ability to indefinitely detain American citizens without trial. What does Rob think? Check it out here.

Keep your eyes on this developing story: Democratic lawmakers are putting RTD’s toes to the fire on building out the Northwest corridor. RTD made a promise many years ago and the folks up in the Longmont area have been paying for a rail system that has yet to be delivered. How long can RTD hold out? How long will the Northwest corridor take it? Time will tell…

Finally, there is a really cool economics fundamentals class being held at our building this Saturday the 11th. I encourage all of you to take a look at the details here. For those still not on Facebook, here is some information:

Are you a liberty activist who loves free markets, capitalism and limited government – but have a difficult time describing its myriad benefits and merits when talking with others?

Then this is the educational training course for you!

Liberty on the Rocks is looking for leaders in the liberty movement (current or future) who are interested in obtaining insights into the basic fundamental principles of free market economics by attending a half-day educational course in Denver. **Tickets to attend are $10**

On Saturday, February 11th from 1:30-6:30pm, Liberty on the Rocks will present an exclusive hands-on, discussion and activity-driven economics session. During this half-day course, attendees will learn and/or better understand:

-The role economics plays in the advancement of liberty

-How to make the case for freedom from an economic and philosophical perspective

-How prices work in a market place

-Different ways of looking at public policy from an economic perspective

-The essential arguments for why socialism can’t work

RSVP today by purchasing tickets at: http://denver.libertyontherocks.org/economic-freedom-session/

Email Amanda Muell for even more info.

What an event! I can’t begin to describe to my readers how incredibly epic our Constitutional Law event was last month. Our two resident ConLaw scholars Dave Kopel of the University of Denver Law School and Rob Natelson, formerly of the University of Montana Law School wow’ed the crowd with their presentations. We completely sold out the Antlers Hilton auditorium down in Colorado Springs with hundreds of liberty loving nerds who wanted to learn more about the supreme law of the land – our Constitution. In case you missed it, or wanted to relive it again, we’ve got the entire event posted on YouTube. You can find the playlist here.

I also wanted to post the schedule of the event that you will see on the videos, including the lecture titles from Rob and Dave. Here is what was presented in order:

Below are the 4 videos from the event:

PART 1:

PART 2:

PART 3:

PART 4:

Constitutional scholar and Senior Fellow in Constitutional Jurisprudence Rob Natelson released a fantastic book last year called The Original Constitution: What It Actually Said and Meant. The book was and is a huge hit. What the book did was fill a gap that was left by constitutional scholars who never got around to writing a comprehensive look at our nation’s founding document aimed at the lay person. Sure there are a lot of books out there on particular parts of the Constitution, but none that cover the whole shebang and none of them were written with your average Joe (or Jane) in mind. Rob Natelson stepped up and filled that gap.

Turns out however that Rob was not satisfied the first time around. He went back and re-worked his first edition and created and even bigger and better second edition to his book. You can find the second edition both on Amazon.com and the Tenth Amendment Center’s store. So how is this second edition different than the already fantastic first edition? Rob explains all that in this iVoices.org podcast with one of my minions Justin Longo. You can also go to Rob’s blog – constitution.i2i.org – to see what Rob has to say about his second edition.

It’s difficult to improve upon a great thing. But somehow Rob did it with this new book. Thank you for all your hard work Rob. You are doing an incredible job educating us mere mortals on our nation’s founding era history.

Speaking of education… don’t forget that THIS FRIDAY is our huge Constitution event down in Colorado Springs at the Antlers Hilton. There are a few spots remaining, so please RSVP as soon as you can. Do not miss this opportunity to see constitution scholars Rob Natelson and Dave Kopel in action!

Governor Hickenlooper and Attorney General John Suthers have teamed up to challenge the lawsuit against our Taxpayers Bill of Rights (TABOR). I’ve discussed earlier why this lawsuit isn’t just about bringing down TABOR. It’s about trying to bring down the whole citizen initiative process. To help the cause, the Independence Institute filed an amicus brief (friend of the court) opposing the lawsuit and encouraging dismissal. Much of the content of the amicus comes from Rob Natelson’s research into what the Founders meant when they used the words “republican form of government.” Rob discusses the brief in a blog post he wrote on constitution.i2i.org. Additionally, Rob sat down with one of my minions to record a podcast on the subject. You can find the podcast over on iVoices.org. Editorial page editor of the Colorado Springs Gazette, Wayne Laugesen, read our amicus brief and described it as masterful. Thanks Wayne!

I’ve talked a number of times about how we can tackle our federal government’s spending problem. Each time the subject gets brought up, I must make mention of the Constitution’s solution to the problem. Our Constitutional scholar Rob Natelson puts it like this: the Founders envisioned a time when the problem would be Congress itself. So what to do when Congress is out of control and won’t rein in itself? Well then it’s up to the states to take control.

The next logical question is: how do the states take control? Answer: A convention for proposing amendments! The states must come together and address the issue of runaway spending by our runaway Congress. Rob has been talking about this solution for quite some time, but after a couple years of incredibly in-depth scholarship, he’s written his masterpiece for Tennessee Law Review: Proposing Constitutional Amendments By Convention: Rules Governing The Process.

Rob’s article contains the most in-depth look at our Founding era’s historical record on Article V conventions ever put down on paper. I suggest giving it a read if you’d like to become educated on this topic so riddled with fallacies and misconceptions. Additionally, check out this iVoices.org podcast Rob did this morning with my minion. It’s probably the best overview of the subject you could get in around 20 minutes time.