God Gave Us Guns
No. He didn’t.
Anyone who tells you that your right to own a gun is “God-given” is assuming (perhaps correctly) that you’re an idiot.
Nowhere in the Constitution or in any of the Amendments that comprise the Bill of Rights do the documents say that the right to carry arms is a God-given right. In fact, the Constitution does not mention “God” at all, although it refers to a “Creator” twice.
The Constitution’s three mentions of religion are exclusionary: banning religious tests for public office, prohibiting the government from aligning with one religion over another and religion over nonreligion, and guaranteeing the freedom of thought and belief. In other words, the Constitution keeps God out of the business of government and government out of the business of worshipping God.
The only “inalienable” rights referred to are basic human rights that anyone, anywhere, should be able to expect: life, liberty, and the pursuit of happiness.
Does the Second Amendment grant citizens the right to “keep and bear arms”, a right that “shall not be infringed”?
Ownership vs Transactions
The language “keep and bear arms” refers only to ownership. There is no language in the amendment that refers to selling, buying, trading, transferring or any other type of transactional or commercial relationship.
Every time gun enthusiasts emphasize the language of the Second Amendment they are, in effect, also damning the idea of unlimited rights when it comes to acquiring firearms. By claiming a word-for-word interpretation of rights the amendment grants, they’re also claiming the void — what it doesn’t grant.
The Supreme Court has consistently upheld laws regarding licensing and sales of firearms since 1938. And before that, many individuals didn’t even have the right to own guns.
‘Individual’ Rights Have Only Existed Since 1856
As Supreme Court Justice Scalia explains in his summary opinion on District of Columbia vs Heller, the original and commonly accepted interpretation of the Second Amendment was that only those males called to serve as militia were entitled to own guns.
Scalia was well known as a conservative justice who advocated “pure textualism in statutory interpretation and originalism in constitutional interpretation.” In other words, Scalia adhered to the original text and meaning of the Constitution whenever reasonable and possible. Conservative justices Roberts and Alito also concurred in the Heller case.
Individuals gained the right to own firearms with Constitutional protection only after the 1856 Dred Scott vs Sanford decision — 70 years after the Constitution was created. The decision, which affirmed the right of slaves (but not women) to own guns, changed judicial philosophy regarding gun ownership.
The lesson for today is that the idea of individual rights to gun ownership did not exist when the Constitution was written. That right was not supported, promoted or upheld by the Founders or the judiciaries of their time.
It is neither a “God-given” right nor was it a Constitutional right, prior to the Second Amendment and Supreme Court decisions which came much later.
So, does the Second Amendment grant citizens the right to “keep and bear arms”, a right that “shall not be infringed”?
Yes, and no. If you were a black or a white male, that right was not individually granted until 1856, a lifetime after the Constitution was written. If you were a woman, that right was never specifically granted nor denied, and could be interpreted at will. In the 1800’s, a gun cost more than a horse or barn, and was therefore often considered worth more than a woman.
Can I own any weapon I want?
In modern law, there are some gray areas in weapon and “destructive device” ownership, but SCOTUS adheres to a simple rule:
The Constitution prevents an outright ban of most weapons — but it does not prevent controls on how weapons are sold and transferred, and that affects the type of weapon you can purchase and own.
While Chicago’s complete handgun ban was overturned, a conservative Supreme Court reiterated in McDonald vs Chicago that a wide variety of state and local gun laws are constitutionally permissible.
In many places, it is legal to own grenades, “bazookas” and rocket-launchers, as long as they are registered and the owners have passed background checks. But those permissions vary by state. What you can own and carry in Wyoming may not be what you can legally own and carry in California or New York.
In addition, the Supreme Court made very clear in its McDonald decision that:
“It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”
