Only reporting results which represent a change.

U.S.  Senate. Gains: Indiana (Donnelly replaces Lugar). NM  (Heinrich replaces Bingaman). ND (Heitkamp replaces Conrad).

Senate losses: Mass., Warren defeats Brown (-.5 with NRA C-rated Senator replaced by an F). Virginia, Kaine replaces Webb.

Senate net: +1.5. Ted Cruz’s win in Texas won’t change Senate voting patterns, but the former Texas Solicitor General will be an outstanding and very well-informed leader on Second Amendment issues.

House losses: AZ 9. CA 7 (C-rated Lungren ousted), 26, 36 (Mary Bono Mack), 41, 52. FL 18 (Alan West), 22 (Bloomberg-funded extremist wins), 26. Il  8, 18. MD 6. MN 8. NH 1 & 2. NY 18, 24.

House gains: AZ 2. IA 3 (incumbent vs. incumbent). NC 13 (F-rated incumbent retired). OH 16 (incumbent vs. incumbent).

House net: -12.5.

Governor Loss: Montana (although not officially called yet; winner Steve Bullock has a B- rating). Waiting for results in WA, a possible gain.

Ballot issues. Strengthen Louisiana state right to keep and bear arms, to require strict scrutiny. Win, very important reform, that will be a model in other states. Constitutional right to hunt  and fish passes overwhelmingly in Kentucky, Nebraska, and Idaho.

In short, as Barack Hussein Obama, the Juan Domingo Peron of the 21st century, leads America to fiscal collapse, you can at least keep your guns.

As the results come in tonight, I will blog here about the results as they affect the Second Amendment. In an article last week for National Review Online, I previewed all the Senate and Governor races, and all the competitive House races. Election night starts with a net +3 for the Second Amendment in the Senate, regardless of which party wins the Senate races in New Mexico, North Dakota, and Indiana. In all these states, both major party candidates are strong on Second Amendment issues, so the winner will replace retiring anti-gun Senators (Bingaman in N.M., Conrad in N.D.) or an anti-gun Senator who lost in the primary (Lugar in Ind.).  To summarize the rest:

The three gubernatorial races that are close and that feature major differences between the candidates on Second Amendment issues are Washington, Montana, and New Hampshire.

. . . In four states — Arizona, Massachusetts, Nevada, and Virginia — there are serious risks that Senate seats could be taken by new senators hostile to gun rights. Plausible opportunities to gain seats for the Second Amendment exist in Maine, Missouri, Ohio, and Wisconsin. In these eight swing Senate states considered together, the possibility of a net loss probably exceeds the possibility of a net gain.

As for the U.S. House, a rough estimate would be that if the net gain for Democrats is x, then the net loss for gun owners will be about one-half or two-thirds of x. In swing districts, most candidates are unwilling to forgo the 5 percent of the vote that can be lost by opposing Second Amendment rights. So, in these districts, candidates of both parties tend to support the Second Amendment. Thus, the net change in House composition on the gun issue tends to be smaller than the net party change in any given year.

In addition, Louisiana has a ballot referendum to strengthen the state constitution’s right to arms. Idaho, Kentucky, and Nebraska will vote on adding the right to hunt and fish to the state constitution.

Still trying to figure out that ballot? Then tune into Devil’s Advocate tonight for an explanation of some of those badly worded ballot measures. First, former Denver City Councilwoman Susan Barnes-Gelt joins me to explain Denver Measure 2A, the forever property tax increase. Then Miller Hudson swings by to discuss Colorado Amendment S, the personnel reform amendment. It just doesn’t get much more spine tingling than that. That’s tonight at 8:30PM on Colorado Public Television 12.

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.

Get used to the national attention my fellow Coloradans! It won’t be going away until after next November’s elections. For example, President Obama has “dropped by” what, a half dozen times already? He’s here so frequently I figure I’d ask him to do something useful the next time. Like water my plants or something.

We’ve got to face the facts. All eyes are on our tiny little state and its 9 electoral votes. Even the Wall Street Journal couldn’t help but notice when we voters demonstrated our intolerance for higher taxes in this past Tuesday’s “killing fields.” Check out what the Journal said about us in this house editorial:

You probably won’t be reading much about it, and don’t look for the results to get a lot of airtime on CNN or MSNBC, but Colorado held a referendum on taxes on Tuesday. The tax increasers got blown away. By a nearly 2 to 1 margin, voters rejected a $2.9 billion income and sales tax increase ostensibly earmarked for education. Proposition 103 would have raised the income tax rate to 5% from 4.63% and the sales tax to 3% from 2.9%. Supporters claimed the tax would merely have been “temporary” and was needed to make up for recent cuts in state spending for K-12 and college education.

Both are familiar ploys to sell tax hikes that fund higher spending and typically become permanent.The education gambit was a sneaky attempt to undermine the state’s landmark and popular Taxpayer Bill of Rights, which was approved by voters in the 1990s and has slowed the growth of government. Tabor, as it is known, caps the state budget to the growth of population and inflation each year while rebating revenues above that limit to taxpayers. The union scheme was to erode the spending caps by exempting education spending and earmarking new tax revenues to schools, which already command 40% of the state’s general fund budget.

The Independence Institute, a free-market think tank, warned Coloradans that exempting education from the spending cap is what undermined California’s Gann Amendment budget ceilings in the 1980s. California’s spending and tax burden exploded in the aftermath, leading to its current fiscal and economic laments.

Colorado’s antitax mood was equally clear at the local level. The Denver Post reports that “Aurora voters rejected a $114 million tax increase for recreation centers, Douglas County voters said ‘no’ to school tax increases, and Cañon City voters rejected a tax for library improvements.” The paper called the overall results “a killing field for tax measures.”

It’s not everyday the Journal writes about you in the house editorial. I imagine as November 2012 inches closer, we’ll see more and more coverage of what’s going on here. So my advice to my readers is simple: be on your best behavior. Don’t let the Journal or say, Time Magazine catch you picking your nose or peeing in public. That could be embarrassing.

Speaking of… I’d like to remind the national media outlets that nothing, absolutely nothing of importance happens anywhere in or around Shotgun Willies. Don’t even bother going near it.

How will Colorado figure in this coming presidential election? Watch the latest episode of my show to find out!

In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted “to inject black families into a white neighborhood just to create some sort of integration.” He argued that there was “nothing wrong with ethnic purity being maintained.” That candidate was President Jimmy Carter, the Democratic nominee.

Carter kicked off his general election campaign with a speech in Tuscumbia, Alabama. Although the Klan’s headquarters were located in that small town, Carter was not appealing to the Klan vote, but was instead hoping to win the votes of the more than 40,000 people who saw him speak at the town’s annual Labor Day fair. Perhaps Carter chose to start his general election campaign in rural Alabama because he recognized that Reagan might take away some of the southern states that had been crucial to Carter’s win in 1976. As things turned out, Carter was right to be concerned; he ended up losing Alabama by 1%.

After the Republicans nominated Ronald Reagan in Detroit in July, he gave his first post-convention speech in New Jersey, near the Statue of Liberty. While the informal opening date of the general election campaign is traditionally Labor Day, Reagan continued to campaign during August, and on August 3, 1980, spoke at the Neshoba County Fair in Mississippi. The Neshoba Fair is large and popular, which probably explains why Democratic Senator John Glenn campaigned there in 1983, when seeking the presidential nomination, and why Democratic presidential nominee Michael Dukakis spoke there during the 1988 general election campaign, shortly after being nominated by the Democratic Convention.

Seven miles away from the fairgrounds is the town of Philadelphia, Mississippi, where three civil rights workers were murdered in 1964. Unfortunately, it would be difficult to find many places in Alabama or Mississippi which are not within seven miles of the scene of some infamous past act of racial violence, such as a lynching.

Reagan’s Neshoba speech was 33 paragraphs, consisting almost entirely of remarks about economics and jokes about Jimmy Carter. In the middle of the speech, he discussed his experience with welfare reform as Governor of California. He began by rebutting the idea that people on welfare are lazy and don’t want to work. To the contrary, said Reagan, they were just trapped by bureaucracy. Welfare, education, and other programs would work better for their beneficiaries if they were managed by state and local governments, rather than federally:

“I don’t believe stereotype after what we did, of people in need who are there simply because they prefer to be there. We found the overwhelming majority would like nothing better than to be out, with jobs for the future, and out here in the society with the rest of us. The trouble is, again, that bureaucracy has them so economically trapped that there is no way they can get away. And they’re trapped because that bureaucracy needs them as a clientele to preserve the jobs of the bureaucrats themselves.

“I believe that there are programs like that, programs like education and others, that should be turned back to the states and the local communities with the tax sources to fund them, and let the people [applause drowns out end of statement].

“I  believe  in  state’s  rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I’m looking for, I’m going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.”

A rather mainstream sentiment, even if some devotees of federal centralization might disagree with it. Indeed, the bipartisan welfare reform law signed by President Clinton carried out Reagan’s vision, by returning much of the control of federal welfare programs to the states.

Some ignorant people claim that “state’s rights” is just a euphemism for racism. The phrase certainly has been sometimes been misused that way, but it is false to claim that the phrase is necessarily racist. Rep. Barney Frank (D-Mass.) introduced the “States’ Rights to Medical Marijuana Act” in the 107th, 108th, and 109th Congresses.

Reagan ended up winning Mississippi by 1.4% of the vote. Both Reagan and Carter were politically smart to take the opportunity to speak before large audiences in the rural South in states where the election would be close. It would be false to say that Carter was appealing to racists because he kicked off his campaign in a town that was the current home of the Ku Klux Klan, and it would be equally false to say that Reagan was appealing to racists because he mentioned his lifelong theme of state’s rights at a county fair several miles away from the site of an infamous crime 16 years earlier. Today, columnists and commentators who tell you that the ”kick off” for Reagan’s general election campaign was an appeal to racists are demonstrating that they don’t bother to check the facts before they make extreme allegations. People who are making coded appeals to racism don’t tell their audience that the “stereotype” of welfare recipients is wrong,  and that “the overwhelming majority” of them want to work.

(David Kopel)

After some looking around, I’ve settled on the Milwaukee Journal-Sentinel, and @daveweigel to follow for tonight’s Wisconsin Supreme Court election results. With 17% of precincts reporting, Prosser and Kloppenburg each have 50%.

Folks interested in Justice Prosser’s record on right to arms issues can find some information in my article, The Licensing of Concealed Handguns for Lawful Protection: Support from Five State Supreme Courts, 68 Albany Law Review 305 (2005) (analyzes recent decisions in New Mexico, Missouri, Ohio, Wisconsin, and Rhode Island) (short answer: according to Prosser’s majority opinion, the Wisc. RKBA includes the right to unlicensed concealed carry in one’s home or business, but not automobile).

UPDATE: For those folks who follow out-of-state judicial election returns via the Internet, this has been quite an exciting night. Lots of lead changes. At various points, each candidate had a substantial lead, and then the race reverted to 50/50. That’s the situation now, with 95% in, and Prosser coming from behind to open up a 6,000 vote lead, which just fell to a lead of fewer than 2,000.

MORE: Two lead changes within a minute. First Kloppenburg up by 1,500; now Prosser up by 4,500, then lead falls to 2,500 two minutes later. 97% in. Greatest Wisconsin state supreme court election night ever for non-Wisconsinites!