Texas' online porn law could shatter a First Amendment precedent

There are alcohol addicts, and there are people with delusional thinking about life because of alcohol.

There are sports addicts, and there are people with delusional thinking about life because of sports.

There are gaming addicts, and there are people with delusional thinking about life because of gaming.

Should we ban or severely restrict alcohol, sports and games?

There are also men with delusional thinking about women because of the bible. Lets ban that too.

Pornography was widely banned in pretty much as soon as photographs were invented. The federal Comstock Act was passed in 1873, and many state laws preceded it.

Stanley v. Georgia is the kind of brush that needs clearing. It concluded that anti-obscenity laws that had been on the books for a century were suddenly unconstitutional.

The reasoning of the decision makes absolutely no sense. It has a lengthy hand-waving rant about what someone may possess in the “privacy of their own home.” But the only privacy right in the Constitution is the fourth amendment, which prohibits warrantless searches. But in that case the police found the pornography while executing a valid warrant on suspicion of gambling activity. Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence.

If the defendant in Stanley had been in possession of child pornography, he would have been subject to prosecution even today. So the decision’s while digression about privacy is literally immaterial to the issue before the Court.

Instead, Stanley is based on a value judgment about the type of pornography at issue in that case an opposed to say child pornography. But that sort of analysis of social costs and benefits is for voters and legislatures, not the Supreme Court.

That’s simple-minded reasoning, based on the false notion that personal choices don’t have social effects. The things society allows have aggregate social consequences that affect individuals. If aliens were watching a society that allows porn and one that doesn’t, those societies would be different even if the aliens couldn’t see into people’s bedrooms to observe them actually watching porn.

The law doesn't prevent you from using it. It prevents children from accessing it, or at least tries to.

If you don't like guns, and use them.

They absolutely did think that. You’re overlooking that, at the time, the militia was “BYOF” (bring your own firearm). Federalist 46 has an extensive discussion on how European governments don’t trust their citizens with arms, and how a regular army wouldn’t be able to stand up to armed citizens: https://guides.loc.gov/federalist-papers/text-41-50.

Once you remember that “militia” meant “calling up armed citizens into an organized fighting force” the text makes perfect sense. It says we need people to have personal weapons—especially weapons of war—so they can be called up into a militia.

This is so obvious that the contrary view can only be the legacy of mid-20th century thinking when the bar was on the floor for old white guys. The framers were a bunch of people who had recently overthrown their government with the arms they had in their sheds. Of course that’s what they were getting at with the second amendment.

A far better argument is that the second amendment isn’t incorporated against the states, because incorporation is kind of fake news. I also think that Heller suffers a bit from not going far enough in acknowledging that the second amendment is about overthrowing the government. It’s not really about self defense or handguns.

    Writing for the majority, Antonin Scalia argued that the operative clause of the amendment, “the right of the people to keep and bear Arms, shall not be infringed,” codifies an individual right derived from English common law and codified in the English Bill of Rights (1689). The majority held that the Second Amendment’s preamble, “A well regulated Militia, being necessary to the security of a free State,” is consistent with this interpretation when understood in light of the framers’ belief that the most effective way to destroy a citizens’ militia was to disarm the citizens. The majority also found that United States v. Miller supported an individual-right rather than a collective-right view, contrary to the dominant 20th-century interpretation of that decision. (In Miller, the Supreme Court unanimously held that a federal law requiring the registration of sawed-off shotguns did not violate the Second Amendment because such weapons did not have a “reasonable relationship to the preservation or efficiency of a well regulated militia.”) Finally, the court held that, because the framers understood the right of self-defense to be “the central component” of the right to keep and bear arms, the Second Amendment implicitly protects the right “to use arms in defense of hearth and home.”

https://www.britannica.com/event/District-of-Columbia-v-Hell...