First Amendment precedent is due for a brush clearing. The Supreme Court went in a stupid direction with it in the 1960s and 1970s. Nobody who wrote the first amendment thought it protected pornography.
Have you see a Greek statue? Those well pre-date them. Pretty much the second a medium is invented it's used for porn and some of these mediums like engraving or even taking pictures are pretty old.
Stanley v Georgia is from 1969 [1] which is more than 110 years after pictures [2]. Seems like porn being allowed was pretty settled regardless of if it was because of the 1st amendment or not.
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.
The framers would doubt that on probably two counts.
4th) Seizing an item not listed in the warrant sounds like a general warrant with extra steps.
5th) As originally intended, you can't self incriminate yourself with your personal belongings. It lead to a whole host of issues with prosecuting people so the US judicial system has decided to ignoring it's intended meaning. This is also why Fruit of the Poisonous Tree is from the 1920s [1] (as opposed to say 1789 when the constitution was written) since that fruit used to be always inadmissible as opposed to now sometimes inadmissible.
[1]: https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
And the fifth amendment has nothing to do with personal belongings. It means you can’t be forced to testify against yourself.
General warrants can specify places. The point is really that the 4th amendment requires you to list where you're searching and what to be seized. The framers complained about how when a general warrant was issued; the British officers would seize _all_ of their papers and not just criminal ones. The framers definitely would not like you using a warrant for gambling ledgers to seize _not_ gambling ledgers.
5th amendment's current interpretation is that it only means you can't be forced to testify against yourself. However, it's initial interpretation was that your belongings couldn't be used either. [2]
> The Court reasoned that the defendant had a superior property right in the papers, and that compelling their production as evidence was compelled self-incrimination [3]
[1]: https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United...
You are failing to confront Rayiner's point, which is that it has always been the law in the US that if the police search your computer for evidence of fraud, let's say, and they come across a folder named "child porn", and if they search in that directory and actually find child porn, that child porn can be used to convict you of the crime of possession of child porn even if the search warrant was only to search your computer for evidence of fraud.
By the same principle, if they stop you for speeding or having an expired license tag and it is obvious that you are drunk or high, the fact that they didn't know (or couldn't have known) you were drunk or high when they decided to stop you does not prevent the authorities from using the evidence gathering during the traffic stop to convict you of driving under the influence.
[1] It starts of with rayiner saying that pornography isn't covered by the 1st amendment.
[2] To which I counter with, pornography isn't listed in the 1st amendment because the people who wrote it considered it a non-issue in the sense of "why wouldn't it be allowed?" since there was already nude imagery and prostitution.
[3] To which rayiner focused on that there are many pornography bans in the united states. While also bringing up the 4th amendment and saying it doesn't cover privacy.
[4] To which I counter with, as intended by the framers they would absolutely disagree with our current interpretation of the 4th and 5th amendments. They would agree that the 4th amendment restricts what you can take during a seizure to _just_ the items listed in the warrant. They would also agree that the 5th amendment restricts what you can use in court and somebody's personal belongings are restricted. So Stanley v Georgia would've still be a win for Stanley.
[5] To which rayiner claims (without evidence) that neither of those interpretations are correct.
[6] To which I counter with (with evidence), the 4th amendment is in response to seizures of belongings _not listed_ in the general warrant and the 5th amendment was previously cited in court as a reason that production of your personal belongings could be considered self-incrimination.
And that brings us to the present time with your post so lets quickly dissect that.
> which is that it has always been the law in the US
It has not always been the law. This is covered by [4] and [6] where originally you can only seize whats listed in the warrant. The interpretation has been changed for the expedience of prosecution but because it's interpretation was changed that means it wasn't "always the law".
> By the same principle, if they stop you for speeding or having an expired license tag and it is obvious that you are drunk or high, the fact that they didn't know (or couldn't have known) you were drunk or high when they decided to stop you does not prevent the authorities from using the evidence gathering during the traffic stop to convict you of driving under the influence.
This is an example involving neither the 1st, 4th, 5th, a warrant, or pornography so it's really not relevant to the discussion. However, if during the seizure of your vehicle (for it's misuse) the police found a gambling ledger that would run afoul of the 4th amendment and it's admittance in court would run afoul of the 5th amendment according to the original meaning.
[1]: https://news.ycombinator.com/item?id=40246109
[2]: https://news.ycombinator.com/item?id=40246440
[3]: https://news.ycombinator.com/item?id=40246804
[4]: https://news.ycombinator.com/item?id=40247108
Yeah, we can do that today even.
All I can say is that after looking at some of the countries in the present day that don’t allow porn, they are indeed different from those that do. Typically not in ways that would make anyone actually want to live there, and with their lack of porn access having pretty much nothing to do with that at all. Makes you wonder, huh.
Similarly, VPNs are a dime a dozen and incredibly easy to use, so a minor who wants to access it can just hop through another state. The law has no real impact.
Prima facie, this makes sense. When you get cigs or beer, you're asked for ID to prove you're over 18. Porn is age-restricted, so porn websites should also ask for ID. QED, etc.
But if you go even one step beneath this reasoning, you'll see that this is an unbelievably slippery slope:
- What's stopping state governments from subpoenaing ID verification systems to find out who's viewing porn?
- This is from the same state that "pioneered" a legal bounty system for phoning in women who might be getting an abortion so that they can be "dealt with." What's stopping the state from doing the same from people who watch porn?
- What's stopping the state from extending this law to require age verification for anything that feels right for an ID check? Abortion sites? sites about birth control? Sites saying the wrong things about $DEITY?
- This is also from the same state that, as the article outlines, has also passed a state bill that makes any form of moderation on social media illegal. So enacting spam control for folks spamming OnlyFans links is fine, but if you click on those links, you're viewing contraband and should be dealt with? What the fuck?
At least with that argument, there’s literal text (“A well-regulated militia”) supporting the point.
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.”
I’m not trying to start an argument on the legitimacy or lack thereof of decisions; I’m pointing out that if you want to play the originalist game, there are plenty of other examples that you may not like.
America had no standing army, and many of the founders did not want one. Hence, the need for a militia.
I wonder if that means the lack in the US of official citizen militias dependent on private firearm ownership could be considered unconstitutional.
IIRC, the National Guard is reckoned to be the militia, but that seems a little like BS to me. It seems pretty much to be a de-facto component of the federal military, complete with rotations to fight foreign wars, etc.
It’s a prefatory clause and an operative clause. The first explains the purpose, the second gives the rule. So you can certainly argue that the rule must be considered in the context of the purpose.
But that still doesn’t get you where you’re going. Because personal firearms ownership certainly facilitates raising a militia if you need one.
which answers the question of what Scalia thought the founders meant and what Scalia thought was permitted under the English Bill of Rights (1689).
It doesn't address what the founders actually thought, nor how they'd respond to modern weapons in the hands of mass shooters.
These were educated men. They had an idea about how technology could improve and, more specifically, that technological development would first be applied to war.
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.
OK, I don’t think we’ll have any meaningful discourse here. Have a nice day.
But actual militias are goddamn scary so government prefers to allow individual gun ownership that amounts to nothing except thinning the herd of trigger happy rednecks.
But that’s not how militias were organized. Having militia men bring their personal firearms is a practice that long predates the US.
I am of the view, though, that the right to bear arms, while personal, is still connected to potential militia service. I don’t think it follows from the second amendment that you can carry your guns around in public, etc. The second amendment is both broader and narrower than the Heller interpretation.
My reading is that the intention was for the states to have right to keep Swiss style volunteer armies, but what was dangerous was the "well organized militia" bit so it's not implemented. Instead guns and ammunition are allowed to be freely distributed to prevent the organization and exacerbate chaos between the people in the event of uprising against the government. If the anarchy comes, because of the prevalence of guns and lack of organization local warlords will quickly arise and mostly kill each other in struggle for power. Then the oppressive government comes in and just sweeps the thinned herd.