Abdul El-Sayed Says Only Muskets Are Protected. SCOTUS Disagreed in 2008.
Michigan Democratic Senate candidate Abdul El-Sayed says the Second Amendment protects muskets and little else. He made the argument at a recent campaign appearance. His logic: muskets were the common arm when the amendment was adopted, so every American should have an equal right to a musket today. The Supreme Court rejected that reading in District of Columbia v. Heller, No. 07-290, back in 2008. Justice Antonin Scalia, writing for the majority, called the founding-era-only theory “bordering on the frivolous.” The National Shooting Sports Foundation flagged the remarks, and J.D. Tuccille at Reason picked them up.
Key Details
The facts are short, and they are damning for the argument.
- Speaker: Abdul El-Sayed, Democratic U.S. Senate candidate in Michigan.
- The quote: “When they promised the right to bear arms, they had muskets. So, yeah, everyone should have equal rights to a musket.”
- The controlling case: Heller, No. 07-290, decided in 2008. Scalia wrote the majority opinion.
- What Heller held: The Second Amendment presumptively covers bearable arms that did not exist at the founding. The right is individual, separate from militia service, and includes lawful self-defense inside the home.
- The analogy Heller used: The First Amendment covers modern communication. The Fourth Amendment covers modern search methods. The Second Amendment works the same way.
- The 2022 follow-up: New York State Rifle & Pistol Association v. Bruen required gun laws to fit the nation’s historical tradition of firearm regulation.
- The 2023 record: El-Sayed called for swapping the Second Amendment’s guarantee of gun ownership for a constitutional right to healthcare. During his Senate run, he declined to flatly reject that idea.
Background
Heller came out of a challenge to Washington, D.C.’s handgun ban. The city barred handgun possession in the home and required lawfully owned firearms to stay disassembled or locked. The Court struck those rules down and established that the Second Amendment protects an individual right. Two years later, McDonald v. City of Chicago applied that right against state and local governments.
Heller also left room for regulation. Scalia wrote that longstanding prohibitions on felons and the mentally ill remained presumptively lawful. Courts have spent the years since working out the edges of that language.
Bruen changed the testing method. Courts no longer weigh whether a gun law seems reasonable. They ask whether the government can point to a historical analogue. Justice Clarence Thomas wrote that opinion for a 6-3 majority. Originalism, as the Court applies it, looks to the public meaning of the text when ratified. It does not freeze the right to 1791 technology.
Why It Matters for Gun Owners
Michigan voters will choose a Senate nominee who has already put the Second Amendment on the table. A U.S. senator does not write gun laws alone. Senators vote on federal judges, and judges decide which firearm restrictions survive. A senator who argues the right covers only muskets is signaling how he would read those cases.
Gun owners in Michigan and every other state should watch three things. First, watch whether the candidate repeats the musket argument or retracts it. Second, watch the judicial nominees he supports, because Heller and Bruen govern the lower courts. Third, track any push to trade enumerated rights for new ones. El-Sayed’s 2023 healthcare proposal is the clearest example. A right to healthcare would require someone else to pay for it. A right to keep and bear arms requires only that the government leave you alone.
Share the Heller citation with anyone repeating the musket line. Most people have never read the opinion.
DownRange Analysis
The musket argument does not survive Heller. Scalia shut the door on the founding-era-only reading eighteen years ago, and Bruen reinforced the approach. Under Bruen, the government carries the burden of showing a historical tradition for a restriction. Nothing in the text says the right freezes at the flintlock.
The argument also fails on its own terms. If the Second Amendment covered only muskets, the First Amendment would not cover the printing press, and the Fourth Amendment would not reach a phone. Nobody applies those rights that way. Gun ownership should not get a different standard.
Gun owners should do three things now. Know the Heller and Bruen holdings cold, so you can correct a bad argument in one sentence. Ask every candidate whether they accept Heller as settled law. Then check their answers against their votes. A candidate who calls the right a musket-only guarantee is not a candidate who will defend your carry rights.
