If the Constitution is in fact the Supreme Law of the land, why should it mean different things in different places.

This concept is most prevalent in First Amendment jurisprudence where obscenity law considers “contemporary community standards.”  Something may be obscene in Bismarck, North Dakota, but not obscence in San Francisco, California based on some nebulous concept of local standards.

This is clearly correct under modern First Amendment Supreme Court jurisprudence, but is it correct constitutionally? Does the Constitution permit the rights of a citizen of North Dakota to free speech to differ from the rights of a Californian? Does this seem right.

The Government takes full advantage of these different standards, and frequently prosecute obscenity trials in more socially conservative areas. See this Volokh post on the Obama Administration shifting away from this tactic.

Another common application of this doctrine pervades gun control laws. Pundits frequently argue that Chicago needs different gun laws than Cheyenne. Candidate Obama frequently made this point on the campaign trail. Heller seems to adopt this notion. But why? Where in the Second Amendment is there a carve-out for local concerns.

Does the Fourth, Fifth, or Sixth Amendment mean something different in New York or Los Angeles? All other rights seem to be universal, except the First and Second Amendments. These are two of my favorite liberties, so this is troubling.

As an aside, it strikes me that one could make a plausible argument that the “contemporary community standards” test for obscenity violates the Equal Protection Clause to the extent that it necessarily results in different determinations of what is obscene, depending upon locale. Yes, I know that geographic location is not a suspect class, but I see no reason why it couldn’t be, especially when it results in rather arbitrary distinctions as to what is or is not criminal under Federal Law.

This is a topic I would like to develop further. Stay tuned.