MS NOW Pushes Flaky View That the Second Amendment Is for Muskets

On Saturday's Connect with Jacob Soboroff show on MS NOW, fill-in host Melissa Murray presided over a segment in which one guest promoted the weak liberal narrative that the Second Amendment only applies to guns that existed in the 1700s.

While discussing how the U.S. Supreme Court is likely to rule on the issue of regulating so-called "assault weapons," Murray referred to bans on "semi-automatic weapons" as she posed: "The Second Amendment, as you know, involves the right to keep and bear arms. What do we know from the court in their most recent rulings about how the justices are likely to respond to this challenge to bans on semi-automatic weapons?"

Liberal legal analyst Leah Litman, professor of law at the University of Michigan, immediately got to her flaky analysis:

Unfortunately, the Supreme Court, or at least the Republican appointees, have shown they have a ton of zeal for basically cannibalizing and eliminating common sense gun control regulation because they've adopted an interpretation of the Second Amendment that maintains firearms that didn't exist at the time the Second Amendment was ratified -- those are still constitutionally protected.

After Sandy Hook Promise's Mark Barden complained about the failure to enact strict gun control in the aftermath of school shootings, Murray turned to Litman and followed up:

...Luigi Mangione gunned down a health care CEO on the streets of Manhattan, and he used a ghost gun that was one of the guns at issue in those regulations that ultimately were upheld. And it seemed like that real fact -- that realpolitik might have colored the justices' deliberations. Do you think that the reality that Mark has alluded to, the fact that school shootings and the use of AR-15's is so prevalent, will also shape the court's decision making here?

Litman asserted that such "evidence" does not matter to conservative Supreme Court justices:

But as a legal matter, the Republican appointees on the Supreme Court have unfortunately said that when they are analyzing the constitutionality of these laws, evidence, empirical findings, those don't matter. What matters is the justices' take on history.

She soon concluded that Republicans have an "odd" interpretation of history that governs their views on gun rights:

I very much hope that all of this evidence and the horrific casualties that have resulted from mass shootings carried out with automatic semiautomatic rifles moved the justices. And those facts should stay in the public narrative. But I am concerned that, as a legal matter, the Republican appointees have basically said, "We don't care about the empirics, the evidence or the facts. What we care about is our frankly odd take on history."

Transcript follows:

MS NOW's Connect with Jacob Soboroff

August 22, 2026

10:28 a.m. Eastern

MELISSA MURRAY, FILL-IN HOST: This consolidated set of cases has really captured the attention of many Second Amendment enthusiasts. The Second Amendment, as you know, involves the right to keep and bear arms. What do we know from the court in their most recent rulings about how the justices are likely to respond to this challenge to bans on semi-automatic weapons?

LEAH LITMAN, UNIVERSITY OF MICHIGAN LAW SCHOOL: Unfortunately, the Supreme Court, or at least the Republican appointees, have shown they have a ton of zeal for basically cannibalizing and eliminating common sense gun control regulation because they've adopted an interpretation of the Second Amendment that maintains firearms that didn't exist at the time the Second Amendment was ratified -- those are still constitutionally protected.

And yet governments have to show that the regulation of those firearms that's used today resembles the kind of regulations that were applied to firearms that looked substantially different than firearms do today. That is, the government would have to show that it is regulating AR-15's in the same way that the government's regulated especially dangerous weapons that existed in the 1700s and 1800s -- like, I don't know, muskets or bayonets. And based on that logic, the court last term struck down two gun control regulations, one at the federal level and one at the state level. So I think it's very concerning that the court took up this particular case.

(...)

MURRAY: Mark Barden has just alluded to the realpolitik of this. And we have children who are learning how to deal with active shooter drills. Mass shootings are a fact of life here in the United States. Last term, the Supreme Court also took up a case. This was about a federal regulation on ghost guns. And although at oral argument, it seemed that some of the justices were ready to invalidate that regulation. Ultimately, the court upheld it.

And one of the things we noted in our podcast, Strict Scrutiny, was that in the intervening time between oral argument and the decision coming out, Luigi Mangione gunned down a health care CEO on the streets of Manhattan, and he used a ghost gun that was one of the guns at issue in those regulations that ultimately were upheld. And it seemed like that real fact that realpolitik might have colored the justices' deliberations. Do you think that the reality that Mark has alluded to, the fact that school shootings and the use of AR-15's is so prevalent, will also shape the court's decision making here?

LITMAN: I certainly hope so. And I think it's very important for organizations like Sandy Hook Promise and the others that are involved in this fight to continue to make the case to the public about the importance of eliminating such dangerous weapons from the hands of would be mass shooters. But as a legal matter, the Republican appointees on the Supreme Court have unfortunately said that when they are analyzing the constitutionality of these laws, evidence, empirical findings, those don't matter. What matters is the justices' take on history.

The ghost gun case that you alluded to was actually the Supreme Court's interpretation of a federal law. That is, the court did not weigh in on the constitutionality of the federal law and federal regulation. So I very much hope that all of this evidence and the horrific casualties that have resulted from mass shootings carried out with automatic semiautomatic rifles moved the justices. And those facts should stay in the public narrative. But I am concerned that, as a legal matter, the Republican appointees have basically said, "We don't care about the empirics, the evidence or the facts. What we care about is our frankly odd take on history."

MURRAY: Well, can we talk about that for a minute, Leah? I mean, the conservative justices who have voted to strike down these laws in the name of the Second Amendment all claim to be originalists, that they are just doing what the framers of the Second Amendment would have wanted. But, as you mentioned earlier, semi-automatic weapons are a very modern day problem. James Madison did not go around toting an AR-15. How will the court square the reality of this very modern problem with the language of the Constitution and the context in which it was written?

LITMAN: They unfortunately don't really try to square that, as we've suggested. They adopt protections for firearms that didn't exist at the time of the founding at the same time that they demand that the government show, well, there were regulations that were quite similar to modern gun control measures. But they have been, frankly, pretty selective in how they have applied this historical test because in some cases, including the one from last term as well as the New York case, you mentioned, they have required the government to come close to showing there was a historical twin for a gun control measure.

That is, you have to show that an enacted law or regulation looks quite similar to the one being challenged. But then in another case, they suggested a rough analogues kind of parallels. Those will do. And so it seems like the kind of historical analysis that the justices use depend on their underlying intuitions about their sympathy for the gun control measure. That's not exactly law like, but it might give us some hope that they could be moved by the evidence and the public campaigns that show the dangerousness of these firearms, that maybe that would persuade the justices to adopt a more lenient historical analysis.