Tag Archives: Kyllo

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…..