Thursday, December 8, 2011

Why the Ninth Amendment doesn't cover gun rights

First off, let's start with the text of the Ninth Amendment:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The "right to keep and bear arms" is one of those enumerated (for those too stupid amongst you--it's enumerated in the Second Amendment).

If one wants to go down the road where gun rights are protected by the Ninth Amendment, one winds up running into this quote (thank you, Wikipedia) from Griswold v. Connecticut, 381 U.S. 479 (1965):
[T]he Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.... I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government....While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.
The problem, vis-a-vis Ninth Amendment jurisprudence, is that people have tried it too often in the past (as compared to Second Amendment jurisprudence) and been smacked down by the Establishment. The smackdowns have taken the form of decisions relegating the Ninth Amendment to being a rule of construction, rather than an affirmative rule which says "if you can think of a(n unenumerated) right, the Ninth Amendment protects it". This history has resulted in a welter of precedent which will as a practical matter make establishing any protectible rights under the Ninth Amendment likely a wasted effort and failure. I mean, if Douglas said "no Ninth Amendment rights" in Doe v. Bolton, 410 U.S. 179 (1973), as he did and as Ginsburg (who was one of the attorneys in the mix there) surely knows, who are you going to get to say otherwise.

Of course, the Ninth Amendment is construed to protect abortion rights (and birth control), which is why this argument is unpopular. In fact, any reference to the Ninth Amendment automatically drags in all the reproductive rights cases - Palko v. Connecticut (302 U.S. 319 [1937]), Griswold, Roe, you name it - and the sexual conduct cases - Lawrence v. Texas (inter alia). You can also add proper medical care is something which is a benefit to society whereas firearms ownership has its detriments.

Additionally, if you are going to argue armed self-defence is covered under the Ninth Amendment, you have to get over the hurdle that the doctrine of self-defence, as understood at the time of the Constitution, stated that only the force necessary to counter the threat was appropriate. In fact, carrying a weapon could be construed as you were looking for trouble!

So, Abortion is OK even though "isn't mentioned in the Constitution", but Ninth Amendment case law supports it.

"Gun rights" are not covered by the Ninth Amendment since it is enumerated in the Second Amendment.

10 comments:

  1. Laci the Dog,

    You hold yourself up as the all-knowing interpreter of U.S. law and the Constitution, but you don't get to have things both ways. If you want to be an originalist, then you have to give up abortion. If you accept the Constitution as a living document, then the Supreme Court's Heller and McDonald decisions declaring the Second Amendment as an individual right unconnected to militia service is good.

    What you're doing here is what all good lawyers and politicians do: You have your position, and you're using whatever reasoning you can get to defend it. But you're sounding a lot like a Republican when it comes to limited government--good when it refers to business, bad when it refers to our bedrooms.

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  2. Nicely deconstructed Laci.

    Unfortunately, while Greg may teach writing to those who didn't learn it properly K-12, I doubt that he will demonstrate sufficient mastery of reading skills to understand it, and that he will lack the critical thinking to make a good response to it, and most of all, I expect that he will lack the research skills to check your work.

    I on the other hand do have the reading, critical thinking, and research skills to appreciate what a very good job you've done here.

    Applause, applause! Well done,sir!

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  3. No, Greg, I am not an originalist. You are the only one who makes that claim.

    I only follow the law as written and the precedents which interpret that law. Additionally, there is only one Constitutional way to amend the constitution.

    Despite what you think, Justice Stevens dissent has kept alive the Civic Right interpretation and it is legally valid.

    In fact, I have shown that US v. Miller has not been overturned, therefore, it is still good law.

    You have yet to disprove that.

    Rather than me being "all knowing", Greg, you have demonstrated that you are an ignorant fool.

    I even have my doubts about your ability to understand the English language from the comments you have made.

    In particular, the comment made on this post.

    I have to ask this question of you, Greg:

    Are you an idiot?

    Even if I were to accept the Heller Decision, it does not give an unlimited right. In fact, I have shown that the right given is extremely limited.

    Quite frankly, Greg, I doubt you read this post.

    And you obviously didn't understand it if you did read it as I went into your complaint.

    Greg, as I like to say, you love to show the world that you are one seriously ignorant person.

    Please properly refute my argument and stop showing the world how ignorant you are of legal process and US Constitional law.

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  4. BTW, Greg, I would appreciate if you would read Justice Stevens' dissent in Heller before making any further comments.

    And more of a fool of yourself.

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  5. I'm still waiting for Greg to put his foot in it even further on this post.

    Oh Dear, was that a sexual comment.

    I can hear greg Bawling like a baby.

    It would be so funny to see Greg get shot.

    I'm not sure what would kill him first the shock or the reality of the situation.

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  6. Wow, Greg, why should I stop making those type of remarks?

    You didn't bring any evidence to refute what I said in this post.

    In fact, the only reason I posted your whiny horseshit comment was to show how far you have been beaten into the ground.

    As for making comments about how well you can practise your profession--well, Greg, you claim to teach a lot of things, but you have yet to demonstrate that you have any abilities in anything other than creative writing.

    I'll give you that, you are pretty good in creative writing, Greg, but so far you haven't shown you can think your way out of a wet paper bag.

    So, unless you can prove that you can properly debate a topic by providing proper evidence to back it up.

    And admit that you have been shown to be out of your leage.

    Well, as I said when you asked to have an independent party say whether you are an idiot or not.

    I hope you can live with the honest and brutal truth.

    Thanks for admitting that you just can't handle it.

    Stick to playing cowboy, Greg.

    And get some toy guns while you're at it.

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  7. Greg wrote:
    4. Another large group of my students are people who are trying to improve their lives, whether they are looking for better career prospects or are trying to rebuild after some unfortunate event. We take in students who are rejected by other kinds of colleges, and we don't charge the exorbitant fees that for-profit schools demand. We offer a way up for a lot of people who need it. Isn't that a good thing in the view of your political leanings?

    I've had many students over the years come see me a while after they took my classes who told me that I introduced them to the joy of learning or that I gave them a chance when no one else would. This is not to brag, since my colleagues tell the same stories.

    You may make remarks about my position on guns, on politics, on history, and on many other subjects, but when it comes to my profession and my work, you are hereby cordially invited to shut the fuck up.


    Here is the problem Greg. You are teaching kids who are trying to master the basics. Laci and I had mastered and exceed those basics of the 4 year college level somewhere around age 11 or 12.

    Both of us have attended highly competitive institutions for our education, where to get really good grades meant having to prove oneself better than other really GOOD students.

    And while your goal of helping those who need to improve themselves is admirable - I've donated a LOT of time both while a student and afterwards to tutoring those who needed help myself - both Laci and I have been taught by tenured professors who had to do a lot more than you have to get their positions and to keep them. I went to one of the top 30 schools in the U.S., I was accepted on the basis of top SATs in the fall of my junior year of high school, but could have as easily been accepted anywhere on my psats. My teachers, including in K-12 mostly had PhDs in their specialty, also from prestigious institutions. I was accepted at the only college to which I applied two weeks after submitting my application.

    You know what part of that acceptance was based on, besides grades? The letters from my teachers writing about my critical thinking, where they noted that I had learned to question and challenge authority, INCLUDING THEIRS, and to do it well.

    Which is what you missed in my anecdote.

    I truly believe Greg that every person has something to teach me, regardless of their position in life, simply by their experience.

    But you have not so far demonstrated what that is that I could learn from you. What you have shown is NOT something at which you do well is to think critically, or research consistent with academic standards.

    Good for you that you have inspired students, but shame on you for doing such a sloppy job of analysis and critical thinking, and for having such a deficient general knowledge on topics where you advance an opinion.

    I was inspired by a very learned man who was my mentor, beginning at age two when I was profoundly angry at having to wait to go to school to learn to read. He challenged me to start teaching my own damned self.

    So I did. I also got my mouth washed out with soap for the first time in my life when my parents asked me what I was doing, and I answered I was teaching my own damned self to read since they wouldn't let me go to school early to learn how.

    I've been challenged to think, AND to excel, my entire life. You don't measure up to that standard, pure and simple.

    Laci DOES.

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  8. I can also add, Greg, that some of my clients are seriously retarded, yet they are more capable of understanding simple legal concepts than you.

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  9. That article is bastardizing the Ninth and Second to negate the militia clause... and therefore the true intent of the Second. The Second is one of the few time the Constitution states a PURPOSE for a law. There is no individual "right" in the Second if being in the militia MANDATED gun ownership. It say NOTHING about owning a gun for other purposes. It need not since gun ownership, like most issues, was LEFT TO THE STATES... unless you're suggesting that the Second offers SLAVES the right to own firearms. Obviously, no slave state would permit this.

    The Constitution gives the federal government NO direct power to control private firearms EXCEPT when it comes to the militias. The Second is what Madison would describe as a positive right... a NEWLY CREATED right meant to limit the powers of the new federal government. It has NOTHING to do with any natural right... unless you're saying the federal government wanted to protect guns over a right to fall in love, marry or not, have kids or not, build a home or not, etc.

    As for the Ninth... yes there's little case law, not because it's some rule of construction as opposed to a guarantee of rights... but because most of these matters of unenumerated rights were OUTSIDE the purview of the federal government... and were left to states. That hardly means the Ninth doesn't have original intent... and that was simply to insure all rights were protected except those given away to create government powers. From then on it was a matter of the People and their states to decide.

    So, Abortion is OK even though "isn't mentioned in the Constitution", but Ninth Amendment case law supports it.

    Trying to have a list of all liberties and freedoms is nonsensical since liberty, is limitless... right down to what foot you want to place first on the floor when you get up. And here is the danger Madison feared... to enumerate SOME rights places the others in danger. We see this on with social conservatives on the right who want to sabotage the Ninth because they fear it will protect rights they don't want people to have... and they have to bastardize the Second for political purposes.

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  10. The point of Laci's post that the 9th Amendment has nothing to do with guns since gun rights are enumerated in the 2nd, seems indisputable to me. I also agree that the 2nd clearly refers to the "militia," which today is obsolete and meaningless

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