The National Rifle Association and the American Civil Liberties Union seem to approach the political and legal issues of the day from opposite points on the ideological spectrum—the former is often considered to be an organization of the right and the latter one of the left. Mary Anne Franks’s The Cult of the Constitution, however, proposes that the NRA and the ACLU are more similar than we might think: both organizations shape the political narrative of constitutional rights by adopting an absolutism that counters threats to gun rights and free speech by advocating for “more” guns or speech. More controversially, Franks claims that both organizations’ advocacy advances a techno-libertarian individualism that protects white, male supremacy.
Second Amendment fundamentalism, what Franks terms “the cult of the gun,” adheres to an uncompromising belief in an individual’s right to use guns in self-defense. By conflating the possession and use of firearms with the constitutional right to do so, any proposal to promote gun use—such as relaxing restrictions on the open carry of guns or establishing stand-your-ground laws—“will be viewed as protecting the constitutional right to self-defense,” while any attempt at regulating gun use or availability “will be viewed as attacking the constitutional right to self-defense.” We have seen this phenomenon after mass shootings in Newtown, Orlando, Las Vegas, Parkland, El Paso, Dayton, Odessa, and far too many other places to name: calls for even moderate reforms, such as expanded registration and background checks, have been stifled by the absolutism of the NRA and its political allies.
First Amendment fundamentalism, what Franks terms “the cult of free speech,” manifests its libertarianism in the “marketplace of ideas” metaphor that Justice Oliver Wendell Holmes Jr. coined. As Franks explains, under this justification for the freedom of speech, “when all ideas, even deeply offensive ideas, are allowed to freely circulate in the marketplace, the best ones will win out, and the truth will ultimately prevail.” In other words, the answer to white-nationalist marches in Charlottesville is not suppression, but more speech.
On its face, because these interpretations of First and Second Amendment rights are framed in universal terms, they would seem not to advance one person’s rights over another’s. But using many contemporary examples, Franks shows that in practice, the focus on constitutionalizing all aspects of gun ownership and speech end up harming women and minorities. If it’s true that, in the words of the NRA maxim, the antidote to a “bad guy with a gun” is “a good guy with a gun,” how can one tell if someone carrying a gun in the exercise of open-carry laws is a bad guy or a good guy? Too frequently, a split-second judgment arises out of prejudice, whether overt or subconscious, with deadly results. Consider the 2016 death of Philando Castile in Minnesota. After being pulled over for a traffic stop, Castile notified police that he had a permit and a lawful weapon in the car he was driving. Almost immediately, he was shot to death by the police officer he notified. Although Castile followed the same gun laws that the NRA champions, Franks observes that the NRA said nothing in response to Castile’s death.
Franks also illustrates how First Amendment absolutism harms women and minorities. She uses the example of nonconsensual pornography, or “revenge porn”: the disclosure of sexually explicit images and video without the consent of the subject. (“Revenge” is a misnomer, as it can encompass other motives, such as extortion for profit.) These images and videos could have been obtained by hidden cameras or hacking, or given in confidence by a romantic partner. Given how easy it is for uploaded materials to spread in the internet age, many states have sought to regulate and punish those who post ill-gotten explicit images and videos. Yet despite the invasion of privacy and trauma that nonconsensual pornography imposes on its victims, the ACLU has maintained that it is free speech, and has opposed comprehensive legislation that would prohibit the nonconsensual distribution of sexually explicit images.
Franks deftly contrasts the ACLU’s position on revenge porn with its position on other matters of privacy, such as protecting individuals’ geolocation data or forbidding merchants to ask for Social Security information. But these additional nuances undermine Franks’s decision to single out the ACLU as an exemplar of First Amendment fundamentalism. Franks also illustrates how the NRA’s move away from a focus on safety, training, and education, toward a Second Amendment fundamentalism, is relatively recent in its nearly century-and-a-half existence. (For instance, the NRA supported the Gun Control Act of 1968.) The comparisons between—and thus Franks’s focus on—the two organizations are necessarily inexact.