The Cult of the Constitution

Under my real name, there is a book by me written over ten years ago (smh) on my view of the Constitution and I have a fairly absolutist view of things. I do repeatedly try to include a proviso that the courts are not the only way the Constitution is enforced.  So, for instance, my broad view on the rights to use drugs would not be something that the courts alone would enforce.  Also, a significant number of things occurred since the middle of the second Bush Administration.  But, I did have a broad view of the first two amendments.  I'm somewhat more restrained these days, especially when reading what to me is exaggerated absolutism, but at least my heart is with a strong view of things.  One that carried forth in other amendments too.

It is therefore helpful, from various perspectives, to get a another view of things.  This book honors the Fourteenth Amendment, but the Equal Protection Clause in particular.  One might suggest it has a certain "cult" of the "superright" (to use its language) here, one that honors the rights of non-white males in particular.  The book starts with a de-mythization of the Founding, which it argues was an active effort to protect the rights of well off white males.  And, in practice, this group still receives special benefits though they continue to feel (unjustly) aggrieved as victims.  This is not a necessary framing for the author's argument about how the First and Second Amendment is selectively enforced as a "cult" but is helpful to note all the same.

[The title is broad and the principle applied to these two amendments can be applied to other provisions as well.  The general idea of a "cult" of the Constitution, one often not based on actual knowledge of what the document even says, is not limited to the two amendments.  This applies to the pro-white male application.  This is suggested even here to the degree due process might arise and so forth regarding the subject matter.  The Constitution has to be seen as a whole, not singular parts that can be read in a vacuum in absolutist terms that often confuse the basic concept.  See, e.g., the Commerce Clause being thought of as having some limited function, one not even consistently applied. The book, however, covers the more limited ground.]

I think this book is somewhat of an overrcorrection but the targets warrant that sort of thing all the same.  The book provides a common stance that the current RKBA argument was a rather recent perversion of the text and history of the Second Amendment.  This is somewhat exaggerated.  It is not some 1970s development that there was a basic idea that we have a constitutional right, probably found in the Second Amendment (though not necessarily only there), to own a firearm.  There was a general idea (see, e.g., Dred Scott v. Sandford) even in antebellum times of some basic right to own firearms.  This being broadly understood as a "Second Amendment" right probably developed over time.  But, there was some core idea that citizens had the right to own a firearm.  The limits of that right was the rub.

The argument that the right to own a firearm is argued in absolutist terms, so much that even D.C. v. Heller for some is too restrained, is helpful.  This includes a reply to those who argue that guns are generally beneficial to self-defense.  The argument that guns writ large are counterproductive is a harder case to be made, but it is helpful to make a strong case to reply to the other side there.  And, the book is particularly biting in noting how even the NRA is rather selective -- when women "standing their ground" to guard against abusive husbands or blacks are selectively killed for having a firearm, conservative leaning gun rights groups seem rather silent.

I personally think the Second Amendment was ratified for a limited purpose that still has some bite (think of local police populated by local communities or woman or LGBT in the military).  The current view of an individual rights view developed over time and was probably in place as early as the Fourteenth Amendment.  So, I think there probably is a constitutional right to own firearms though the discussion on how self-defense as a whole is a lot more complicated is quite accurate.  And, the right (and the language of the Second Amendment helps here) also includes various regulations.  It is not absolute.

The chapters of free speech and the Internet will sting liberal leaning types (though as usual, I wish to say many liberals support a RKBA) more.  The author again notes in practice the right often favors white males more than others, including when regulations involving harassment and so forth are deemed inappropriate.  This includes things like revenge porn and harassment online.  Liberals will appreciate the section that notes that people concerned about free speech on campuses repeatedly ignore those that target left leaning speakers.

But, sacred cows like the breadth of the value of the "market place of ideas" are attacked as well.  I'm wary of the breadth of this argument at times, including when she notes that hate speech violates the principles of our nation (pro-Nazi speech has no "idea" unless it is one that goes against our basic values).  Stopping the march on Skokie is something I'm really wary about doing. The armed Charlottesville march is somewhat easier to address -- "peaceful assembly" (though this is not highlighted in the book) is after all right there in the amendment. Also, concern about a large possibly violent demonstration being in a certain location is reasonable. It surely seemed to be given the results. 

I continue to think that laws against obscenity generally are inappropriate though this would not stop limits on child pornography or revenge porn.  I might be wary about language that such and such material will cause "emotional distress" but a boyfriend who uses private pictures to gain revenge on an ex-girlfriend is not a general concern of mine.  I found, e.g., Eugene Volokh at his blog and his supporters excessive when concerned about efforts to address harassment in high schools and the like. Meanwhile, that blog never seemed to address free speech concerns involving abortion clinics (e.g., forced ideological messaging).  And, I probably would find some room for disagreement on regulating online speech with the author but at the very least the liability of Backpage and the like is strong enough that it worthy of the discussion provided.

The book therefore is a worthwhile read.