The Ninth Amendment and the RKBA

[hugh damright]

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

-Ninth Amendment to the US Constitution


I have been reading an interesting article about The Inescapable Federalism of the Ninth Amendment which asserts that the Ninth's rights retained by the people are primarily States' rights. As I understand it, an example of these retained rights is the right of each State to pass gun control laws. Yet this federal view also embraces the individual RKBA as a right retained by the people. It may seem like a conflicting construction, to read the Ninth's retained rights to regard both the collective right to pass gun laws and also the individual right to keep and bear arms, but from the federal perspective, there is no conflict.

While the libertarian view emphasizes the Ninth Amendment as a declaration of unenumerated individual rights, the federal view emphasizes the Ninth Amendment as a declaration of limits upon federal powers. The amendment is construed to mean that the enumeration of certain rights shall not be construed so as to increase federal powers. Even though the Ninth Amendment doesn't say anything about federal powers, a declaration of rights against the federal government is a declaration of limits upon federal powers (rights against the feds and limits upon the feds are two sides of a coin).

From this federal perspective, the Ninth Amendment means that the declaration of a right (e.g. Second Amendment) shall not be construed so as to increase federal powers over the RKBA, whether a power over our personal arms, or a power over our states' gun laws, or over militia, or anything else having to do with the RKBA. Construing the Ninth Amendment's rights retained by the people to embrace both individual and collective rights does not create a conflict, because the intent is to keep the federal power from growing out of bounds in any manner, regardless of which of our rights are being trampled.

 

[JellyJar]

If you can find it there is a book out titled "The Forgotten Ninth Amendment". In this book the author clearly demonstrates the "Natural Law" origin of American Law.

The Law of Nature is a legal theory that states that everyone is endowed by Nature with the right to be alive and the right to do whatever may be reasonably necessary to stay alive. This is usually called the right of self preservation.

What today are called fundamental human rights are what were called back in the 18th century "Natural Rights". They are those basic individual rights that are reasonably necessary for self preservation in a political society.

When the Constitution of the US was being drafted by the Constitutional Convention in 1787 there was a proposal put forth to preface the Constitution with a bill or rights. This proposal was rejected for two reasons. First, as the central government to be created under the proposed Constitution would only be a government of enumerated authority and since that government was not authorized to unreasonably deprive people of their unalienable Natural Rights there was no need to forbid the government to not do what it did not have the authority to do!

Second, it was believed that there existed a large number of unalienable Natural Rights of which only some had yet been discovered. So if the Constitution only enumerated some of these rights Congress might, incorrectly, reason that only those rights were protected.

When the Constitution was sent to the states for ratification one of the biggest arguments against it was the fact that the Constitution as originally written by the Constitutional Convention did not contain a bill of rights. This almost led to the Constitution not being ratified. To make sure the Constitution was ratified a deal was struck that as soon as Congress first convened that amendments would be created to create a Bill of Rights.

James Madison, often called the Father of the Constitution because of his ideas that were incorporated into the Constitution, wrote most of what eventually became our present Bill of Rights; the first ten amendments. To make sure that all our unalienable Natural Rights were protected he created the 9th amendment as a "Catch All" amendment to protect any and all unalienable Natural Rights not otherwise mentioned in the Constitution.

Make no mistake about it. The rights protected under the 9th amendment are individual rights, not state rights. The 10th amendment was written to try and protect the rights of the states.

 

[hugh damright]

James Madison, often called the Father of the Constitution because of his ideas that were incorporated into the Constitution, wrote most of what eventually became our present Bill of Rights; the first ten amendments. To make sure that all our unalienable Natural Rights were protected he created the 9th amendment as a "Catch All" amendment to protect any and all unalienable Natural Rights not otherwise mentioned in the Constitution.

Make no mistake about it. The rights protected under the 9th amendment are individual rights, not state rights. The 10th amendment was written to try and protect the rights of the states.

I believe you are mistaken. Madison's draft of the amendment said that the enumeration of a right shall not be construed so as to increase federal powers ... would you have us believe that he meant it should not increase federal powers over our individual rights but should increase federal powers over our states' rights? I find the assertion to be untenable, and if you read the article I referenced, you would see that Madison himself saw the Ninth's retained rights as including collective/states' rights.

And I hope nobody is trying to say that the intent was to protect our rights from all levels of government, the Ninth was intended to protect our rights against the feds.

 

[legaleagle_45]

Hugh, I believe that Professor Lash is wrong. Here is why... The original draft of the 9th proposed by Madison:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Lash's main focus is upon the latter portion of the proposed amendment, to wit: "...or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."

However, this portion of Madison's draft of the 9th seems to be a clear response, and attempted fix, to the objections argued by Hamilton in Federalist 84:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

 

[Cosmoline]

the Ninth Amendment means that the declaration of a right (e.g. Second Amendment) shall not be construed so as to increase federal powers over the RKBA, whether a power over our personal arms, or a power over our states' gun laws, or over militia, or anything else having to do with the RKBA.

I think it's fair to read the Second as not giving any authority to create the BATF, but they don't use the Second as justification for that anyway. As far as the ability of the BOR to limit State law, that comes via the 14th Amendment which came after the 9th. To the extent the 9th would prevent incorporation, it has been superseded.

 

[mack]

States don't have rights - they have powers. The ninth does not mention the states at all. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Restrictions on federal power over the states is clearly stated in the tenth amendment. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

And yes the rights in the bill of rights are meant today to protect our rights from all levels of government - at least since the 14 amendment, and the courts understanding of it. I cannot see a day when the USSC will overturn the presently accepted understanding of the 14th amendment.

 

[Manco]

The US Constitution and Bill of Rights probably would not have been ratified by the states if they had limited the powers and "rights" of the states too much, originally. While the federal government was prevented from stomping all over the rights of the people, the people were still subject to being stomped by the state governments. Also, questions such as whether states were free to leave the Union remained unanswered until the Civil War, when it was determined--in the most decisive manner possible--that no, states were not free to leave (or else the Union would not stand), nor did they have the power or right to decide who had rights and who did not (obviously in reference to slavery). That's when the US Bill of Rights began to be "incorporated" at all levels of government, in piecemeal fashion through the judiciary process, and now it's the Second Amendment's turn, if the Supreme Court is willing.

Maybe I've oversimplified things just a tad, but I don't think there's any question as to the fact that there was a huge paradigm shift regarding states' rights vis-à-vis the US Bill of Rights, and when and why it occurred. In accordance with the Tenth Amendment, the Fourteenth Amendment was finally created (ratified by representatives of the states themselves) to give the federal government the power to protect the rights of its citizens from the states.

 

[hugh damright]

I believe that Professor Lash is wrong ... Lash's main focus is upon the latter portion of the proposed amendment, to wit: "...or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."

However, this portion of Madison's draft of the 9th seems to be a clear response, and attempted fix, to the objections argued by Hamilton in Federalist 84:

It also seems to be a clear response to the states' requests for amendments, such as Virginia's request for an amendment declaring:

"That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, orotherwise as inserted merely for greater caution."

Exactly what is Professor Lash wrong about? I seem to agree with what you are saying and also with what he is saying. As I'm understanding it, while there was some concern about an enumeration of rights being construed to be exhaustive, there was also a concern that a bill of rights was inappropriate and might make it appear as if the scope of federal powers was greater than what was intended. The Ninth Amendment was intended to guard against this too, to guard against misconstruing the delegated federal powers to be broader in scope than what was consented to. That is what I am getting from this article, that there is a relationship between the Ninth and Tenth Amendments, that they are both intended to secure federalism, one by guarding against the misconstruction of delegated powers, and the other by guarding against the exercise of undelegated powers.

 

[Manco]

As I'm understanding it, while there was some concern about an enumeration of rights being construed to be exhaustive, there was also a concern that a bill of rights was inappropriate and might make it appear as if the scope of federal powers was greater than what was intended. The Ninth Amendment was intended to guard against this too, to guard against misconstruing the delegated federal powers to be broader in scope than what was consented to.

That's how I see it, too, and the only way around it would be to amend the Constitution, which is basically what the Fourteenth Amendment is about. Mind you, expanding the protection of the Bill of Rights in the modern sense really only started more recently, particularly during the civil rights era, but the door was opened for this, so to speak, right after the Civil War.

Initially there was great reluctance toward incorporation, as seen in the United States v. Cruikshank case, in which it was expressly ruled that the Second Amendment applies only to the federal government. Fortunately for us, however, many cases of that era have been overturned by subsequent cases, something that SCOTUS obviously doesn't like to do in general, but has frequently done when the natural rights of citizens are involved. Hopefully McDonald v. Chicago, in the shadow of District of Columbia v. Heller, will be another such case.

 

[hugh damright]

As far as the ability of the BOR to limit State law, that comes via the 14th Amendment which came after the 9th. To the extent the 9th would prevent incorporation, it has been superseded.

I'm still pondering the article ... but since the 14th Amendment says nothing about making the first eight amendments binding against the States, might we be construing the 14th's delegated powers to be greater in scope than what was actually delegated? And if so, then does that construction supersede the 9th, or does it simply violate the 9th?

I see that Professor Lash has also written papers regarding the 14th's privileges or immunities, and he is defining a relationship between the 9th and 14th Amendments ... I may or may not agree with his conclusions, but I intend to read the papers, because I find them interesting and educational.


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457360

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1561183

 

[woerm]

Mack, correction

Article VI section 2

the Constitution is the governing doc regardless of the actions of treaty, legislation etc.


the Bill of Rights has always applied to the states.

they ratified the doc they were bound by it.

idiot decisions of the SCOTUS notwithstanding.

woerm

 

[Manco]

I'm still pondering the article ... but since the 14th Amendment says nothing about making the first eight amendments binding against the States, might we be construing the 14th's delegated powers to be greater in scope than what was actually delegated?

It says that no state has the right to deprive US citizens of due process and equal protection, which gives the federal government supremacy over the states in these matters, which are defined by the US Bill of Rights and the US Constitution, of which the Bill of Rights is, of course, a part. So it basically does say that the federal government has the power to impose on the states whatever articles of the Bill of Rights and the Constitution are applicable to due process and equal protection. However, it does not explicitly enumerate exactly what should be applied and when, leaving it up to the courts to decide when to incorporate certain rights and privileges. Thus far, the Second Amendment has not yet been incorporated, although this may change soon.

And if so, then does that construction supersede the 9th, or does it simply violate the 9th?

The 14th Amendment may seem to "violate" the 9th and 10th Amendments, but remember that it is an integral part of the Constitution just like they are. The 10th Amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," and the 14th Amendment means that the Constitution now delegates the power to incorporate due process and equal protection to the federal government. So there is no "violation" at all, really, and even if there were, newer amendments can actually repeal older ones--that's the power of changing the Constitution. If the states didn't want the federal government to have so much power, then their representatives should not have ratified the 14th Amendment in the first place, but they did.

 

[hugh damright]

It says that no state has the right to deprive US citizens of due process and equal protection, which gives the federal government supremacy over the states in these matters, which are defined by the US Bill of Rights

I don't seem to make the connection ... if Virginia passed a discriminatory gun law, or enforced a gun law in a discriminatory fashion, then that would seem to violate the intent of the equal protection clause ... and if Virginia police were acting outside of the law, disarming some people without following the lawful procedures, then that would seem to violate the intent of the due process clause ... but as long as Virginia's gun laws are not discriminatory, are not enforced in a discriminatory manner, and we act within the bounds of our equally protective laws, then I don't see how the 14th's "due process" and "equal protection" clauses delegate any other federal jurisdiction over gun laws [edit] i.e. I don't see how it "incorporates the Second Amendment".

Of course, the way the SCOTUS construes it, even if a State acts within the bounds of its non-discriminatory laws, it isn't due process if the law violates (the SCOTUS view of) fundamental rights, including most of those enumerated in the first eight amendments ... but I am pretty confident that the 14th's due process clause was intended to regard only procedural due process and not substantive due process.[edit]

If the states didn't want the federal government to have so much power, then their representatives should not have ratified the 14th Amendment in the first place, but they did.

I've read that Virginia voted on the 14th Amendment and it received 0 votes in our House and 0 votes in our Senate ... then Virginia was put under military rule, becoming "US Military District Number One" until we voted against our will. My whole region was treated that way. So yeah, the States ratifed the 14th, but only at the point of a yankee bayonet.

Even if we pretend that the 14th was properly ratified, I don't see how the States could have known that a declaration that they must have due process of law meant that the SCOTUS has a power to veto any State law which violates the SCOTUS view of "rights".

 

[geekWithA.45]

Yawn.

Hugh's in what...his 5th (?) year of arguing for unlimited State's Rights on THR?

Somebody wake me up if he ever changes his tune.

 

[Manco]

I don't seem to make the connection ... if Virginia passed a discriminatory gun law, or enforced a gun law in a discriminatory fashion, then that would seem to violate the intent of the equal protection clause ...

I just mentioned the two clauses together while speaking in general. In the case of the 2nd Amendment, the due process clause is what would be applicable.

and if Virginia police were acting outside of the law, disarming some people without following the lawful procedures, then that would seem to violate the intent of the due process clause ... but as long as Virginia's gun laws are not discriminatory, are not enforced in a discriminatory manner, and we act within the bounds of our equally protective laws, then I don't see how the 14th's "due process" and "equal protection" clauses delegate any other federal jurisdiction over gun laws [edit] i.e. I don't see how it "incorporates the Second Amendment".

Creating laws that take away the rights of US citizens violates the general definition of due process.

Of course, the way the SCOTUS construes it, even if a State acts within the bounds of its non-discriminatory laws, it isn't due process if the law violates (the SCOTUS view of) fundamental rights, including most of those enumerated in the first eight amendments ... but I am pretty confident that the 14th's due process clause was intended to regard only procedural due process and not substantive due process.[edit]

The 14th Amendment simply says "due process," and SCOTUS generally (although there has been and is some dissention) interprets this to mean all that entails, both procedural and substantive. It's always going to be controversial, but then again, law isn't perfect, which is why we have nine Supreme Court justices who vote, and even then some of the decisions they've made have been real doozies (in the negative sense).

I've read that Virginia voted on the 14th Amendment and it received 0 votes in our House and 0 votes in our Senate ... then Virginia was put under military rule, becoming "US Military District Number One" until we voted against our will. My whole region was treated that way. So yeah, the States ratifed the 14th, but only at the point of a yankee bayonet.

War is what it is. If the Rebs had won, then we'd all be singing a different tune, but they didn't. And the same goes for if the British had won.

Even if we pretend that the 14th was properly ratified, I don't see how the States could have known that a declaration that they must have due process of law meant that the SCOTUS has a power to veto any State law which violates the SCOTUS view of "rights".

The general SCOTUS view of rights is in line with the Privileges and Immunities clause of the original Constitution and the Privileges or Immunities clause of the 14th Amendment, and since there's nothing in the letter of the law to deny substantive due process that would likewise protect the rights of US citizens, I think it's a valid interpretation.

 

[FTSESQ]

which asserts that the Ninth's rights retained by the people are primarily States' rights

Absolute BS! Look at the 10th. It makes it very clear that in founding father speak that U.S. = Federal, State = State, and People = individuals

 

[gc70]

States don't have rights - they have powers.

While this seems to be a generally accepted understanding of "rights" as that term is currently used, it is enlightening to note the following contrary usage in the first amendment recommended by the Virginia ratifying convention:

"1st. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.

 

[hugh damright]

the 10th ... makes it very clear that in founding father speak that U.S. = Federal, State = State, and People = individuals

I don't know what is meant by "State = State", but the assertion that "people = individuals" seems to miss the point of the Tenth Amendment.

I understand the Tenth Amendment to say that the States retain what they did not delegate, that aside from the exceptions in the US Constitution, the final authority in Virginia is the people of Virginia as a collective, or our Virginia government if we the people of Virginia as a collective have delegated the power in question ... that is how I construe the Tenth's declaration that powers are reserved to each State or to the people. Consider New York's request for the Tenth Amendment:

"That every Power, Jurisdiction and Right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same."