Analogies between the First Amendment and the Second (and comparable state constitutional protections) are over 200 years old. District of Columbia v. Heller itself makes them, and they can often make sense.
Such analogies might, for instance, yield the conclusion that (1) most guns (like most speech) are fully protected by the Second Amendment, subject to some restrictions that leave open “ample alternative channels” for effective self-defense, but (2) some narrow categories of valueless or marginal weapons (like some speech) are unprotected. Distinctions between the two Amendments can make sense, too, though I leave them for other articles.
But Guns as Smut does something peculiar: It analogizes a core category of private arms to one of the least protected and marginal categories of speech (obscenity). It’s hard to see any justification for such an analogy, other than a purely instrumental one.
The premise of the First Amendment’s obscenity jurisprudence is that obscenity is historically recognized as one of the “limited areas” of speech that “lack any serious literary, artistic, political, or scientific value,” and are thus “not protected by the First Amendment.” Obscenity, at home or elsewhere, is a marginal category of speech that lacks the full protection that most speech gets. Because of this, selling, buying, and possessing obscenity in public places can be outlawed, and long has been outlawed. Only the special “solicitude to protect the privacies of the life within [the home]” leads to the prohibition on punishment for mere home possession of obscenity.
None of this analysis applies to guns. Possessing guns is traditionally legal. Guns do serve the self-defense value that the Court has found to be embodied in the Second Amendment. And, Heller held, ordinary guns are at the core of “arms,” not on the margin.
Even carrying guns in public places is traditionally legal (though often with license requirements), and serves the constitutional value of armed self-defense. But I need not rely on that: The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home. That premise does not extend to private gun ownership under Heller.
And naturally Guns as Smut’s unsound premise leads to unsound results. If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession. Guns as Smut’s conclusion indeed suggests that it “remain[s] unresolved” whether the government could “so restrict[] the commercial availability of guns that only guns in situ in the home, or those made by enterprising amateur gunsmiths, would be beyond regulation”; the Article’s interpretation of Heller “will not, and cannot, provide [an] answer[]” to that question.
Yet Heller expressly holds that the Second Amendment secures an individual right to possess handguns “for the core lawful purpose of self-defense.” Whatever such a right might mean, it must include the right to accomplish that core lawful purpose by acquiring the handgun. No sensible interpretation of Heller can leave the status of that right “unresolved.” And no sensible analogy between the Second and First Amendments can analogize typical privately owned arms to material that the Court has expressly held lacks First Amendment value. ...
Read the rest of Professor Volokh's rebuttal here, as he rips apart the asinine guns-as-smut argument. What a ridiculous premise -- that the arms protected by the Second Amendment deserve no more protection than that afforded obscenity under the First Amendment. That is, none at all (obscenity is not protected speech). Are there no lengths that these collectivist pukes will not go to try to destroy the parts of the Constitution that they don't like? Ok, it's a rhetorical question -- the collectivist abhors individual liberty, and will do anything to eradicate it.
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