What happened to the ninth ammendment?

[Pigspitter]

Well, I was reading through my history book today and came across the Constitution and while I was touching up on the BoR I saw the ninth ammendment
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Now, doesn't this pretty much say that the Constituion should be interpreted exactly as it is written and no other way?
If that is the case then why do the politicians keep trying to hurt RKBA when under the Constituion that right shouldn't be infringed...ever?

 

[.cheese.]

because to them they are interpreting the BOR exactly as it's written.

Although, your interpretation of the 9th is not to my knowledge the generally accepted interpretation. It's not about what IS in the constitution. It's about what's NOT in the constitution.

If that doesn't make sense, I can try to elaborate although I'm hoping somebody more knowledgeable will come around and explain it better than I could.

 

[brickeyee]

"Now, doesn't this pretty much say that the Constituion should be interpreted exactly as it is written and no other way?"

No, what it says is that the list of rights is NOT limited to the ones enumerated.
While no right to self defense is enumerated, that does not mean it dies not exist.
Privacy could be considered in the same way.

 

[Pigspitter]

ok, thanks I guess I got the wording confused.

 

[Zoogster]

They just appoint supreme court justices they feel will side with the "good of the people" (subject to political interpretation) against the constitution. They get away with it by having them say they actualy believe the interpretation they want, even though in reality it would be very difficult for an educated individual to put themselves in the shoes of people that just rebeled several hundred years ago, and with the mindset and opinions they so eloquently express in numerous other writings, and come to some of thier conclusions. So they know they walk all over it, but they excuse it when they feel it makes us better off.

So the appointed position which is supposed to uphold the constitution has come to be viewed as one where individuals can change the meaning of the constitution to what they feel is right. Two completely different things.
Not liking a definition, and redefining it to suite your beliefs by pretending to not understand its original meaning so you can invent a new one are entirely different things.


As that applies to the ninth thier new definition of what that means would be things like the right to not be subject to the U.N.'s definition of war crimes. Not what the founding fathers considered inalienable rights, like the right to arms for both protection and the ability to fight or resist tyranny.

 

[Zen21Tao]

What the 9th Amendment is says is that non-enumerated rights can't be "disparaged" or denied to an individual just because it is not one of the specific rights enumerated in the BOR. It doesn't say that they ARE protected by the Constitution.

The 9th Amendment was actually meant to prevent a tug of war between federal power and states power. In the Federalist papers there were arguments over whether or not ANY rights should be specifically mentioned as being protected because some feared that a BOR could be misused by an oppressive federal government try to deny individual state's the ability to recognize a right not mentioned in the BOR, just because it wasn't one of the rights specifically mentioned in the BOR. That is why the 9th Amendment was added to the BOR.

 

[v35]

commerce clause

Article I, Section 8, paragraph 3 gives Congress authority "To regulate Commerce ... among the several States ...." In other words, the Founders intended the federal government to oversee the original North American Free Trade Zone. It would make little sense for independent states not to be able to trade with one another (protectionist trade barriers had been common among States).

Reference Walter E. Williams. I'll quote the relevant excerpts here:

As James Madison, the father of our Constitution, explained, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

The ninth and tenth Amendments served their intended purpose for many decades, until finally, about the 1930s, the courts began to cave.

That tyranny was sealed in 1942, by a little known U.S. Supreme ruling in Wickard vs. Filburn.

Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat -- therefore, he was indirectly affecting interstate commerce.

In other words, Filburn was fined not for something he did, but for something he didn't do, that could have, in some imaginable way, affect interstate commerce!

It was on that date I imagine the Founders collectively rolled in their graves.

Why is this gun-related you ask. I'm glad you asked. In 1990 the US passed the Gun-Free School Zones Act, citing its powers under the Commerce Clause! Namely, the possession of a firearm in a local school zone substantially affected interstate commerce.

Huh???

Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.

Yes this is a glimpse into the the cogitations of some of your favorite elected representatives. Scary, no? It is a similar interpretation that requires you to pay Social Security taxes. You can't, for instance, opt out of paying Soc Sec since you might someday take your accumulated earnings and spend them in a state where you didn't earn them. THe commerce clause, again.

Back to Gun-Free Schools. As you are aware SCOTUS overturned the Gun-Free School Zones Act in 1995 saying,

If we were to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

No kidding!

So: cooler heads did eventually prevail. As they may again if SCOTUS decides to hear the Heller vs. DC case. The outcome of that decision may answer your question more directly.

 

[Stretchman]

Yiu have to remember that the bill of rights was added to the constitution 4 years after it was written, and was written 2 years before it was even ratified. To think that the founding fathers had this vision of what this country would be is a misnomer at best. They learned as they went along.

There were people against as well as for the amendments. They argued for a long time about it. Some people wanted no governement at all. Others wanted a strong government. The bill of rights, and even the constitution, were some kind of a happy medium. Designed to appease most of the people, by assuring them that the government would respect their rights. This was in no way a guarantee that their rights would be respected by everyone else.

Sometimes you have to fight for what you believe in.

 

[Ragnar Danneskjold]

That's the grave we've allowed ourselves to be thrown into. With the amount of power the SCOTUS has given themselves, and zero oversight or appeal, they can say pretty much anything, and it's the law of the land. The Constitution and Bill or Rights is not the highest authority in the US. The 9 in-for-life SC Justices are.

 

[amper]

What the 9th Amendment is says is that non-enumerated rights can't be "disparaged" or denied to an individual just because it is not one of the specific rights enumerated in the BOR. It doesn't say that they ARE protected by the Constitution.

Wrong. No rights are "protected" by the Constitution. Rights are inherent. The Constitution cannot create "rights".

The 9th Amendment was actually meant to prevent a tug of war between federal power and states power.

Wrong again. There is no mention of States in the Ninth Amendment. You may possibly be thinking of 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."

For an excellent defense of RKBA based on the Ninth Amendment, see here:

http://www.guncite.com/journals/nj9th.html

 

[st_albert]

Please keep in mind that the Bill of Rights is just a suggestion.

Don't believe me? Ask your school-age children.

</sarcasm>
Albert

 

[thexrayboy]

In theory the 9th Amendment was the "catch-all" amendment. A BOR that listed all of the rights that the founding fathers felt important would be an enormous tome. The framers of the constitution wrangled for years on what should be listed as a right vs what shouldn't. The existing BOR is a compromise, they listed specific examples of rights they felt important enough to talk about specifically and covered all others with the 9th.

The problem essentially is that we have allowed government to grow so big and powerful that those in power now feel they need only pay lip service to the constitution and then only while campaigning. Combine this with a judiciary that once appointed is virtually impossible to unseat and you have the recipe to destroy freedom. That recipe has been utilized to full effect over that last century or so to the point where the Constitution is viewed at best as an anachronism by a significant portion of the populace and for some
it is viewed as an impediment to their ideal of progress, an impediment to be circumvented, short circuited or ignored as needed.

 

[Crunker1337]

Too many politicians see the Bill of Rights, or some parts of it, as obsolete and an impediment to what they want.

 

[Zen21Tao]

What the 9th Amendment is says is that non-enumerated rights can't be "disparaged" or denied to an individual just because it is not one of the specific rights enumerated in the BOR. It doesn't say that they ARE protected by the Constitution.

Wrong. No rights are "protected" by the Constitution. Rights are inherent. The Constitution cannot create "rights".

You may wish to re-read what I said. I didn’t say the Constitution protected rights. In fact I am saying the direct opposite. What I said is that the 9th Amendment was designed to prevent the government from infringing upon someone’s right using an “it’s not enumerated therefore its not protected” argument.

However, within the last few decades the 9th Amendment has be used to “find” rights that judges have claimed are “protected by” the Constitution. I disagree with using such an interpretation of th 9th Amendment to do this as this is not what the 9th Amendment was intended for.

The 9th Amendment was actually meant to prevent a tug of war between federal power and states power.

Wrong again. There is no mention of States in the Ninth Amendment. You may possibly be thinking of 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."

I never said there was mention of “States” in the ninth amendment. What I said was, there was argument in THE FEDERALIST PAPERS over the idea that enumerating rights could be used by the federal government to extend federal power by the government denying the existence of rights based on the fact that they weren’t enumerated in the BOR.

All one has to do is go back and look at what was happening at the time. The founders had just fought for independence against a tyrannical and oppressive central government and to insure such oppression wasn’t again thrust upon them, the organized the Country into individual states governments each with their own legislative powers. Any power not delegated to the federal government, then went to the states. So, yes the state's power to legislate would be protected by limiting the amount of power the federal government could seize. And this is what the 9th Amendment was about, limiting the power given to (or seizable by) the federal government.

Don't take my word for it, read the following:

Excerpt from Federalist Paper #84 by Alexander Hamilton where Hamilton is objecting to creating the entire BOR saying that the enumeration of certain rights could enlarge the power of the federal government:

I go further, and affirm that bills of rights, in the sense and in 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 which are 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.

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html



Likewise, in a letter to Thomas Jefferson, Madison acknowledges the possibility that a listing of rights could problematically enlarge the powers specified in Article One, Section 9 of the new Constitution:

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light 1. because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.

http://www.constitution.org/jm/17881017_tj.htm


The ninth amendment became a way to enumerate rights in a BOR but protect against the possibly enlargement of federal powers.

As Madison says in a speech to introduce the BOR, which would later become the 9th Amendment:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html

 

[CNYCacher]

They forgot to write "Your rights include but are not limited to. . . " at the beginning, so they threw it in the 9th.

 

[another okie]

The 9th is still cited occasionally, as in Griswold v. Conn.

I don't see what the problem is with saying the bill of rights "protects" rights. That's what it does. It says the feds cannot infringe on those rights. That's very different than saying the bill of rights "grants" rights, which is obviously wrong, based on the text of the Declaration and the bill of rights.

 

[280PLUS]

Interesting

I had a whale of a flame war going here on the 9th about 4 years ago. My take is, as it was explained to me, that it simply says there are too many inherent rights to list them all so we're going to list what we think are the important things and then the 9th will cover the rest. Yes, the SCOTUS has caved on the ninth although I can't remember the specific instance. I believe they ruled that there were limits of reasonability to the ninth although I see none as it is written. In other words SCOTUS says it doesn't cover that which might be considered unreasonable. Example I was given, under the 9th you have the right to stand on your head and eat spaghetti. But according to the SCOTUS ruling that would seem like an unreasonable thing to do and therefore is NOT covered by the 9th. Does it apply to firearms? Absolutely. There are those that would argue that your right to bear arms comes not so much under the 2nd as under the 9th. Or it at least serves to strengthen the 2nd. Which is about what the flame war was about, too many people got hung up on the thought of pushing the 2nd aside and could not see that TOGETHER the 2nd and the 9th are a much stronger defense of our right to bear arms.

Then there's the big question, WHY, oh WHY doesn't the NRA or GOA or anybody else look to the 9th for support and WHY will they IGNORE a member's reference to it? IMHO, because it's just a theory I have, it's a double edged sword. Under the 9th you have the right to bear arms however, under the 9th the ANTIS have the right to say no you don't and try to take them away from you. It works both ways.