Muskets and AR-15s

Correction of  a previous post: I was so astonished by an email from a very reliable friend that I failed to check his assertion that Jim Lucas would be introducing a bill to give gun purchasers a tax credit. It turns out to have been a joke from my friend–plausible thanks to the fact that Lucas is verifiably nuts–but unforgivable on my part for repeating something without checking its accuracy. Mea Culpa.


I rarely post about America’s fixation with guns–or to be more accurate, the fixation of some Americans with guns. That isn’t because it is unimportant–it’s because I’ve concluded it’s hopeless. Whatever our more rabid gun-lovers are compensating for (use your imagination), the addiction is beyond my ability to address.

I still remember a conversation I had years ago with George Geib. George was a fixture at Marion County GOP headquarters, where–among other things–he trained precinct workers. He was also a longtime history professor at Butler. I had just become Executive Director of Indiana’s ACLU, and asked him to serve on a committee I was forming to try to resolve disputes within the Board on interpretation of the 2d Amendment.

George declined, telling me that “The 2d Amendment gives you a right to carry a musket and powder horn! Period.”

I thought about George’s response when I read a recent newsletter from Robert Hubbell,  discussing the fallout from New York State Rifle & Pistol Association v. Bruen –a Supreme Court decision written by Clarence Thomas. Bruen held that modern gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.”

As Hubbell noted, that test effectively limits the regulation of guns to laws in place in the 18th century.

Unfortunately, the decision limited regulation–not items being regulated–to the 18th Century, rather than following more rational Court precedents in cases involving modern technologies. For example, a few years back (before the Court was captured by rightwing ideologues in robes), the Court was faced with a case requiring an updated interpretation of what constitutes a “search” for 4th Amendment purposes.

In that case, Kyllo v. United States, the Court ruled that the use of a thermal imaging device to monitor heat radiation in or around a person’s home, even if conducted from a across the street, is unconstitutional without a search warrant. (The device allowed police to detect pot growing in the home’s basement.)

In the Founders’ day, a “search” required officials to trespass–to enter the premises being searched. By 2001, when Kyllo was decided, technology allowed police to search from across the street. Was that still a search, requiring probable cause? The Court–quite properly, in my opinion–said yes, in a majority opinion written by that noted “liberal” Antonin Scalia. 

Clarence Thomas, presumably, would now disagree, although he was in the majority in Kyllo.

I define an actual originalist as someone who understands what value the Founders were trying to protect, and proceeds to protect that value in a world the Founders could never have imagined. (I used to ask my students what James Madison thought about porn on the internet.)

Madison and the other Founders couldn’t have foreseen the Internet–or radio, television or movies– but we apply their concerns about freedom from government censorship to those platforms.

It is insane to define “originalism” as refusal to regulate any technology that didn’t exist in the 18th Century.

Thanks to the Court’s surrender to the gun lobby in Bruen,  the reactionary Fifth Circuit Court of Appeals has now invalidated a law that prohibited defendants accused of domestic violence from possessing a firearm during the time the court was engaged in a determination of guilt– even if the court had made a preliminary finding that allowing the defendant access to a firearm presented a risk of violence.

As the link from Vox reports:

 In New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court tossed out the old two-step framework in favor of a new test that centers the history of English and early American gun laws.

Under this new framework, the government has the burden of proving that a gun regulation “is consistent with this Nation’s historical tradition of firearm regulation,” or else that regulation must be struck down. Bruen, moreover, strongly suggests that a gun law must fall if it addresses a “general societal problem that has persisted since the 18th century” and the government cannot identify a “distinctly similar historical regulation addressing that problem.”

Moreover, Bruen said, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”

If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld. The early American republic was a far more sexist place than America in 2023, and it had far fewer laws protecting people from intimate partner violence.

Indeed, until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other,” it was legal in every state for married partners to beat their spouses.

But we can probably ban muskets and powder horns…..


  1. “If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld.”

    If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers, PERIOD, may be upheld.

    How on earth can we take this court seriously?

  2. At what point in the SC’s delusional desire to return us to the 17th century will they finally break the faith the other branches have invested in them?

    Madison v. Marbury was a ‘gift’ from the Executive, acquiesced to by the Legislative branches in order to preserve the Constitution and an infant USA.

    Had Jefferson said ‘no’ we likely wouldn’t have survived without a rewrite.

    We may not survive this Roberts/Radicals court.

  3. The Second Amendment was an answer to the clarion call: “The British are coming! The British are coming!” Today … AR-15’s and the insatiable diet of extended mags come after our children in mass shootings. FOR WHOM does the Second Amendment protect?

  4. I’ve found there are 2 types of gun owners, those like me who own to hunt and own a variety of firearms for a variety of hunting (ie: you don’t hunt squirrel with a deer rifle, deer hunters many need to hunt with shotguns in one area while rifles are allowed in others) and those who are delusionally insistent that their arms are the only thing standing between “freedom” and a tyrannical government. It was the latter that showed up at various state capitals after called to do so by the would be tyrant trump, ditto the J6 insurrection. Yes there is a lot of crossovers, liberal/progressive hunters are far fewer and we do tend to be quiet compared to the loud mouthed NRA bullies. Most of us scraped NRA stickers off our cars years ago but rarely dare to park cars at public land hunting areas with Biden / Harris stickers. We generally support reasoned gun safety legislation, including “red flag” laws and restrictions on people with a tendency to violence regarding possession of arms.

  5. The Court is ushering the country into an era in which guns supplant the law as the ultimate arbiter.

  6. I have two comments. First, anyone who reads the Second Amendment carefully, and notes the comma after the words “free state,” and who understands English grammar, will know that the phrase that follows the comma pertains solely to the two phrases before the comma. If the writers of the Amendment had wanted the phrase following the comma to be independent of the previous material, they would have used a semicolon, not a comma.

    Second, regarding all of the nonsense used to defend the right to bear arms, because everyone had guns in the s18th century, I wonder if any attorney appearing before the Court will ever have the balls to ask the Justices if they have ever read the Ninth Amendment.

  7. We must remember that it was the firearm brought to this continent that ended up allowing the tyranny of the minority (European invaders) to “conquer” America. It was the firearm that “conquered” the West. So, I think we must understand that the firearm has ALWAYS been part of the white man’s “survival” kit on this continent.

    Now, of course, firearms are in the hands of psychotics who see evil emerging from every sewer. Assault rifles belong with the military and nowhere else. I see these gun fondlers on Facebook all the time and I ask “Why don’t you guys take all your hardware and protective vests to Ukraine? If you’re so eager to shoot something, I hear there’s a target-rich environment there.” I know. Silly me.

    Finally, our “minority” insecurities of the 17th – 21st centuries have morphed into this 40,000 deaths by gun per year in our country. It’s the assault rifles and big magazines, people. Deer and rabbit and turkey hunting isn’t the issue at all. It’s deranged and diseased brains fueled by fear and disinformation that creates the “fear of tyranny” types. Some of these people feel compelled to take their assault rifles into schools and spray innocent, unarmed children to validate their manhood or their issues with society.

    The capitalism associated with firearms is what has, in my uninformed opinion, been the root cause of all this 2nd Amendment wrangling. Arms producers are literally working 24/7 to keep up with the demand.

    So, what other industry is so successful?

  8. Amendment II: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    The argument is about the heart of the Amendment in those three words “well regulated Militia”. We watched as Proud Boys and Oath Keepers and those armed with weapons other than guns, follow the orders and direction of the president of the United States to the Capital Building for that promised “wild time”. People died, our government was called to a halt due to groups listed as the American Militia Movement, the Southern Poverty Law Center identified 165 armed groups in the United States in 2016, we need an update. The National list includes; The Constitutional Sheriffs, Oath Keepers, Not Fucking Around Coalition, Three Percenters, Proud Boys and the Boobaloo Movement. At state level we have the Indiana Volunteer Militia in Lake County. How many of those active in the January 6th insurrection were part of the national level groups we haven’t heard mentioned in the investigation? Are self-proclaimed militias recognized by the government as adhering to the 2nd Amendment and the Capital Police and others violated their civil rights by defending Congress, including those supporting the action? The groups are known to be armed and militant; I believe the lack of gun usage that day was part of the well organized and carried out insurrection along with the apparent mass decision to end the action after Trump’s pitiful news release a few hours later. The group actions were too well coordinated and too successful NOT to have been an organized militant action.

    We still are not “keeping our powder dry” and are unprepared for the promised return of the January 6th insurrection elsewhere in this nation. We know we aren’t safe from military weapons anywhere; mass shootings, police brutality, and a 6 year-old shooting his teacher in the classroom are newsworthy due to bloodshed. The initial crowd movement on January 6th began at a Trump rally; those rallies are beginning again with more support within Congress. We are unprepared, unprotected and unaware of how precarious our position as American citizens is at this time. The 2024 presidential election is looming over us like that anvil over cartoon characters; I plan a grocery shopping trip this morning and hope I will safely return home to check back with all of you on the blog.

  9. Like Jeffrey, I’m “progressive but own many guns.”

    However, I don’t hunt and haven’t since my teens. As a journalist who holds the local police and oligarchy accountable, I carry guns, especially on my motorcycle rides.

    On Sunday, I went to Walmart to pick up a prescription, and a couple entered the store in front of me. He had on a shooter’s vest with a large sidearm. It was cringe-worthy!

    It makes me wonder why SCOTUS is protecting the rights of the paranoid. This is similar to all the politicians tweeting about the Chinese “spy balloon” when we have an arc of military bases south of China. Who’s the aggressor?


  10. In response to Pascal; Amendment IX “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Our right to life is not superseded by the 2nd Amendment right to bear arms.

  11. I read Thomas’ Bruen decision last summer and I was surprised at how he picked and chose his way through history to construct his “originalist” rationale. I firmly believe (and there is a lot of evidence to support this) that one original understanding and intent of the Second Amendment was to guarantee the individual right to gun ownership for self-defense (and also for hunting). Indeed, I would say that this was a “duh” in the 18th and 19th centuries. But from the earliest days of the republic, gun control laws and regulations also existed in every state of the union. The founders are undoubtedly rolling in their graves at the (very modern) assertion that the Second Amendment guarantees an unlimited right to the possession and carrying of firearms.

    Thomas doesn’t follow his own advice that modern gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.”

    My own focus and interest is on a different historical era: the Old West. Most Americans don’t realize just how regulated firearms were in frontier towns of the “Wild West.” FYI, my article in The Conversation, which came out a few days after the Bruen ruling:

  12. Current politics is no different than current religious practices! What is written by the original writers really has no resemblance or bearing on today’s wants and desires!

    It’s all jumbled up, the The present day leadership uses their manipulation of written documents to promote their own agendas by pounding square pegs into round holes.

    Congress is supposed to be in charge of the militia, they are supposed to be able to call the militia and they are actually required to supply the militia when it’s called. They are also in charge of appointing commanders and such. That’s pretty much self-explanatory. You really shouldn’t be able to read too much else into that.

    To the other point, sex, sex, sex! Sex? Yes, sex!

    In the world of Viagra, in the world of increasing mind-blowing debauchery, when you are limp-dicked, or the old rifle is empty, there’s a pill for that! And, what better way to help that pill work than to get a Great big high capacity magazine assault weapon.

    In nature, the biggest and strongest males are the ones that get to mate. It doesn’t work so well with old and fat white guys that want to impregnate as many women as possible although nothing works the way it’s supposed to, lol! Walking around carrying a big old gun, where theoretically this impotent narcissist can take out as many other men depending on the size of his clip lol!

    You see the gun manufacturers hawking their wares with scantily clad women strapped to the nines with weapons. What better way to get the old juices flowing? That and maybe a jar of Vaseline lol and the little blue pill.

    It really is all related, if a religion or religious beliefs say, or scripture says, killing is wrong, war is wrong, or, in another vein, peaceful politics is wrong, truth-telling is wrong, inclusion is wrong, it’s rejected in their mind because it all affects their personal desires to be something that they can never be, a leader!

    So they manipulate the narrative, to where religion, Evangelical religion and maybe most religion is related and married to the gun, the Bible, the flag! Something you see constantly on almost every website you go on.

    The modern gun is a phallic symbol, and the bullets, well, you can figure it out!

    I actually hate the way this world is right now, and, I will not be a hypocrite, and I admit that I have my own gun! I’ve had mine since I was a teenager. But, no automatic weapons. A 44 five shot two and a half inch barrel snubby Revolver, and lever action 45/70 government Marlin 5 shot carbine! No scopes, no laser sights, no magazines!

    Don’t get me wrong, I think is wrong to take a life! But there’s nothing wrong anywhere in politics or scripture that says self-defense is limited. And I would definitely guarantee I’m capable of protecting my family which is melatonin enhanced! My wife, my daughter and two granddaughters are girly girls, and, my responsibility, until the day I die! But I respect authority! I abide by the law! My weapons are registered even though I didn’t have to! I am not or will not be subversive! I will not be rebellious, I will not be treasonous, and, always err on the side of caution.

    If anyone is interested, article 3 section 3 is taken directly from the Bible!

    (Read numbers 35: 30, Deuteronomy 17: 6; 19: 15, 1st Timothy 5:19, Exodus 20:16; 23:7, and also Matthew 26: 63, and compare to present day law)

    Also, look up {18 U.S.C. ~2384}

    Unfortunately the pseudo-viril, narcissistic, self-anointed limp dicked Kings, use guns, as a replacement for bodily functions! A delusional fantasy and Legends in their own minds!

  13. One thing that scares me is that so few people actually own guns. The over 300 million guns are in the hands of about a third of the population. Since SCOTUS is now two thirds batshit crazy, I have to ask: How many of us believe our wits will save us when the crazies come calling? I might be developing a bunker mentality in my dotage.

  14. Arms: instruments or weapons of offense or defense. This could describe anything from a slingshot or switchblade knife to a nuclear bomb. Do we want to allow people to carry hand grenades and build dirty bombs in their garages? If not, regulation of weapons is necessary. This obviously includes firearms. The question is not whether arms should be regulated, but how and to what extent regulation should occur. Anyone who argues to the contrary is not interested in protecting your right to life. Indeed, they are even putting their own lives at heightened risk, even if they are too shortsighted and ignorant to grasp that fact.

  15. The elephant in the room. – Underlying the advocacy for a gun in every hand is (in addition to the weapons companies) the fact that the advocates know that democracy leans in favor of the folks that live by “we are all in this together”. This large majority of relies on the vote and the law to maintain order in our society. The violent minority (Proud Boys, etc) know that they cannot rule/abuse/dominate/take from the rest of our society within the existing framework. See where this is going?

  16. I am glad somebody quoted 2A. It is a sentence fragment and depending on how you read it, it could give everyone unlimited access to firearms. BUT, if you are an originalist, and are looking at the origins of 2A, when the constitution was ratified several states proposed a list of amendments. With the fear of slave uprisings, the southern states were adamant about not giving up control of militias to the new federal government. The fear was that the federal government would be slow or not respond at all if northern states held a majority. The bottom line is several states had proposed something similar as a condition to ratify the new constitution. There were differences in the proposals in that several states listed who could be exempt from militias. In the end there was no agreement on who could be exempt so part of the amendment was struck out, leaving us with that oddly worded sentence fragment, but it is clear the original intent of 2A has it’s roots in racism and slavery and the main focus was about giving the state right to their own militias.

    Out of control gun availability creates externalities law abiding gun owners never have to bear the burden for. Suicides, domestic violence, and even accidental shootings are all tremulously elevated with easy availably of guns. Owning a gun should be like owning a dangerous dog. Homeowners/Auto insurance should be higher, or unavailable if you possess a firearm. No staunch 2A supporter will believe that there is a link between the easy availability of guns and the number of shootings or even mass shootings. Staunch 2A supporter all believe that we will all be safer when we everybody is armed, and the rest of us are idiots for not getting on board.

    I personally know 4 people that have had their lives changed or cut short through guns: 1 accidental shooting resulting in death. 2 robberies, resulting in partial paralysis and eventually death for one of them, and one suicide. The rabid fanaticism over gun ownership has blinded 30% of the population to true cost and danger posed by unlimited gun ownership.

  17. Aging Girl,

    Really, now so more than maybe any other time and human history, women even though they fight against it, are seen as receptacles. Not equal human beings!

    Not with their reproductive rights, not with earning potential, not with intellectual acuity, but very useful for making babies, or, completely regulated as to when and how babies are made. Women tend to be a commodity in this system of debauchery and narcissistic self-a-grandizement.

    In a select general term, with males, the little head controls the big one! With women, intellect flows more freely. Not as quick to make knee jerk judgments on others. Tend to be more inclusive but protective of family and children. And, that’s as it should be. That’s why in this day and age, women make much more rational leaders if they tend to be in that position.

    Now This is just a generalization, there are always exceptions to the rule. MTG and Bobert are a prime example, or however you spell them lol! Those two are nothing but lame-brained panderers which want to hang with all of the little heads!

  18. “…rights of the paranoid.”
    And, who feeds their paranoia?
    Jim jones had guns, Jim Jones was paranoid. Before
    right-wing TV and radio, Jones fed paranoia to his followers.
    Congressman Leo Ryan, and others were killed by
    Jones’ guns. David Koresh had guns, 4 FBI men were
    killed by them. Was Koresh paranoid? I’d think so.
    The SCOTUS members appointed by GOPIGGY POTUS
    people are a dangerous embarrassment to the country
    and the Founders.

  19. A key observation by Sharon > “. . . not that firearms are not to be regulated, but how and to what extent. . .” the same logic and one I have used in past observations in parallel logic to question not the constitutional language but rather its interpretation over 200 years later in a time and place and (as Sheila notes) our forefathers could not have guessed the problems created by modern commerce, industry, race, various isms etc.

    Thus Madison and John Hancock had nothing to say about the internet, a Musk, and air traffic controllers’ efforts to keep the skies safe for jet planes (if not Chinese balloons) just as we have nothing to say about the state of human affairs some 200 years from now (if we survive current and future geopolitical malaises). Given such an evolving setting, it seems to me that originalism as interpretation is the wrong way to go and that instead we should make the Constitution a living document by an evolving interpretation of, inter alia and especially, the First, Second and Ninth Amendments, an interpretation that is in accord with current realities on grounds that you don’t, for instance, hook a frontier interpretation of the Second Amendment to somehow accord with the violent deaths of 40,000 Americans per annum – and I like to think that if Madison and Jefferson were around today they would agree since, after all, their interpretation and solution of the post-King George geopolitical problems of their day that led to their adoption of our organic law of the land was not (per the Federalist Papers) designed to be the end of interpretation. In words of the street, you don’t hook a jet plane to a horse and buggy. Supreme Court, take note.

  20. those who hunt and live rural, have guns,any pol. party. the type of gun depends on the need. many here in NoDak seem to have a fever for who has the most toys. (guns in the basement). with ammo. ive seen many a fun room with a vast array of American weapons. whereas, those who do collect,do so in the quality of the firearm. the most isnt a factor,over just self esteem. many a estate auction here in the upper plains,will see dozens to a hundred up for grabs. many have no ammo,and no parts for upkeep,just the firearm. like any hobby,its seems over stated. the locals
    know who has what,and how many. if one person has 10 assorted firearms,and another has 50,the total gets the number of firearms in circulation way past the stratusphere of guns owned in the U.S. being kept safe and locked up,out of the hands of those who dont care. if America has 360 million firearms,the majority of them are owned by people who just like owenership,and whatever their mindset is. and the family gets to auction the estate if they choose. seems since the oil boom thats now bust,the local landowner and rancher kept a gunnrack in the back window of their pickup, but the trash from down south came here and stole them reguarly. now seldon do you see a visable gun rack. but now you have a loose weapon,in the hands of those who have no regulation. that has led to a gun vault,and everyone i know owns one, sometimes just for paperwork and needed legal garb. if one was to ask why the ARs and AKs assault weapons, ive gone coyote hunting,after dark, with lights,the cost of newborn cattle is tough enough,having wylie depends on your lose,is his survival. ive had 20 plus coyotes in my yard at once at night, my buddies love opening fire.
    but all said, the issue with those who do mass shootings are a mental issue,and the gun owners need to do a better job at making sure they cull that heard of this travisty. though the republicans will complain,and provide zero answers, they are also aware of this. media has the right to spawn conversation,they do not have the right to spawn mass killings. the type and style news journals take the extreme and provide the bullhorn.never the answer,or decent opinion. if anyone cares,
    news max has been placed on the shelf, on direct t.v. its been replaced by two (2)channels with first news,(how fitting) and from its start,has no news, only opinons with people who look like,and talk like don jr,and that blond demond seed from trump,or nikin haley and hickabee.. bill orielly has rappeared tired and is,well still tired. oh by the way,its on two channels, on in front of freespeech t.v and and immediatly after freespeecht.v. seems kinda out there,but then again they dropped LINK to and i guess direct t.v. has become the murderdoch media supplier,without regards to your opinion..
    best wishes

  21. change the subject:
    Chris Hedges has a new piece on identity politics. commondreams .org/opinon

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