Usually, in a confirmation hearing for a Supreme Court nominee, the discussion of the Second Amendment comes down to a debate over whether the amendment guarantees an individual or collective the right to bear arms. One might think the matter was settled in Congress since Supreme Court rulings in Heller and McDonald leave the individual right to bear arms, as Elena Kagan said earlier today, “settled law.” However, having a settled constitutional question left Sen. Charles Grassley (R-IA) with an opening to question whether the right to bear arms come from more than just the constitution. He wanted to know, in fact, whether it came straight from God.
During his questioning of Kagan, Grassley asked her not just about her opinion of Heller, McDonald or stare decisis, but about whether the right to bear arms predates the constitution Kagan is seeking to interpret on the court. He wasn’t talking about the Magna Carta, or the Hammurabic Code, however: he wanted to know whether the right to carry man-made weapons actually came from a higher power. Kagan, for her part, didn’t want to get into litigating whether a higher power gave us rights before we enshrined them in the document she’ll be asked to interpret.