A recently circulated video shows Abdul El-Sayed, the Democratic nominee for the United States Senate in Michigan, explaining his view of the Second Amendment. Describing originalism, he says that “when they promised the right to bear arms, they had muskets,” and adds that everyone “should have like equal rights to a musket.” He also asks whether guns “built just to kill as many people as possible” should be publicly available.
The policy question in that last sentence is for the political process. The legal premise that precedes it is not open. The Supreme Court rejected the musket theory in Heller and has applied that rejection in Caetano and Bruen, and any candidate for the Senate will help confirm the judges who apply them.
What Heller Said
In District of Columbia v. Heller, 554 U.S. 570, 582 (2008), Justice Scalia wrote for the Court:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.”
He then supplied the governing rule. Just as the First Amendment reaches modern forms of communication and the Fourth Amendment reaches modern forms of search, the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
Justice Scalia was stating a general principle, not addressing Mr. El-Sayed. Taken seriously, the musket theory is the argument Heller described, and it would leave every modern arm outside the Amendment’s protection. The First Amendment covers radio, television, the internet, and the podcast, none of which any ratifier of 1791 could have imagined. The Fourth Amendment governs the search of a cell phone, an automobile, and an aircraft. The text protects a category, and the category does not expire with the technology its drafters knew.
Caetano and Bruen
The Court applied that principle in Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam). The Massachusetts Supreme Judicial Court had upheld a ban on stun guns by asking whether a stun gun was “the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” The United States Supreme Court vacated that judgment, unanimously, in a brief per curiam opinion. It found the state court’s reasoning “inconsistent with Heller’s clear statement that the Second Amendment ‘extends … to … arms … that were not in existence at the time of the founding.’” Justice Alito, joined by Justice Thomas, concurred in the judgment and would have gone further. The Court’s disposition was measured and unanimous.
Six years later, New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), confirmed the point. Justice Thomas wrote that “even though the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.” The definition is historical. Its application is not confined to the specific devices then in circulation.
The Founders Expected Invention
The musket theory also misreads the founding generation. Article I, Section 8, Clause 8 empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The founding generation included inventors, Franklin and Jefferson among them, and it expected technology to advance. They knew the arc of arms history from the bow to the crossbow to the firearm, and had no reason to think it had ended.
That is my inference from the structure of the document, not a claim about the ratification debates. The historical record, however, does contain an example. The Girandoni air rifle, an Austrian repeating arm with a tubular magazine holding roughly twenty rounds, was carried by the Lewis and Clark expedition that President Jefferson dispatched after the Louisiana Purchase. Multi-shot arms were not unknown to the founding generation.
Why the Seat Matters
A United States Senator votes on every nominee to the federal bench and the Supreme Court. The interpretive premise a Senator brings to the Second Amendment therefore bears on who sits on the courts that apply it. A senator who believes the Amendment is confined to eighteenth-century technology is likely to prefer judges who read it that way, and those judges would be reading Heller, Caetano, and Bruen out of the United States Reports.
I do not attribute to Mr. El-Sayed any purpose he has not stated. I take him at his word on the musket premise, and on that premise the law is settled against him. Whether particular categories of arms may be regulated is a legitimate question, and Bruen supplies the method for answering it: the text, then the historical tradition of regulation. The answer does not begin with the claim that the Second Amendment ended in 1791. The right is best defended by those who can show that it follows the same rules as every other guarantee in the Bill of Rights.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.