By Nathan Barton
In 2019, much of the Bill of Rights has become a dead letter, honored (but threatened) by words and largely ignored (or avoided through loopholes) in practice. L Neil Smith, in his BORE initiative, points this out clearly.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In plain, modern English, the 9th says:
“Just because some rights are specifically listed in the Constitution doesn’t mean that anything not listed is not a right, or that it’s a lesser right.”
This was needed, because the Tenth Amendment took the opposite approach for powers of the government:
“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.”
Again, in modern, plain English, the 10th says:
“If we didn’t specifically say the United States Government can do something, or that the States can’t do it, then it’s a State power, not Federal.”
The Founding Fathers (particularly Jefferson, Madison, and their supporters) didn’t want this same logic applied to the rights of the people. So the Ninth Amendment explicitly prohibits that argument. These two articles are the “catch-all” provisions, Not just a “by the way” (as they are viewed by many today) but an intentional broadening of the protection of the God-given rights of people. (Not “The People” as a group, but each of us individually.)
Sadly, one argument used today is that since there is no documentation of which rights the Writers were thinking of, this amendment is moot – and even unenforceable.
The Supreme Court, those Nine Nazgul, have stupidly and badly interpreted that.
In essence they say “you can’t say something’s not a right, or less important than another right, just because it’s not enumerated. But any other excuse is just fine.” So we have a subjective, not objective, view of rights. In the popular view (and that of virtually ALL politicians in office and bureaucrats), the Courts get to decide what is and is not a right. Working with the legislatures of the Fifty States and Congress, they can (pretty much arbitrarily) decide what is a right, what is a privilege, and what is – creepily – a crime. Scared? You should be.
There are a litany of other arguments you can make regarding the status of an action as being a right, versus a privilege or even a crime. The most common excuse (sorry, “argument”) is the moral one. “It’s immoral to marry someone of a different race.” “It’s immoral for a woman to wear pants.” And so forth. But close behind that are the “public safety” and “crime prevention” arguments. “It isn’t safe to allow someone to drive on the street without a license … or fly an aircraft without a license.” And “making people register and license cars makes it harder for people to steal them.”
Even so, some “unenumerated” rights are still recognized by the Courts and government.
There is a recognized right of individuals to own and control property.
[Or – or is there? How many kinds of property (material objects) are we denied the “privilege” of owning? By every level of government? Subject for another time. But for now, let’s pretend that there is such an right.]
Is it, or is it NOT more important than the right to keep and bear arms, just because property ownership is not listed in the Bill of Rights? And RKBA is? Despite some BIG exceptions, the right to own, possess and control most property is widely recognized. This limits the government’s ability to control or prohibit ownership or to restrict the owner’s control over their possessions including real property.
But when these two rights conflict, one of them loses. Usually that is the Second Amendment. The Ninth Amendment unenumerated right to own and control entry to property allows the property owner to dictate that no one bearing arms may enter. This restricts the Second Amendment. (That’s even true when the property owner is the US Government, otherwise bound by the Second Amendment since ratification, or the State governments bound by it since 2010. Whether this is right or not is grist for a later article.)
Yes, there are limits to what that property owner can do if entry onto the land is by any means other than invitation only such as if they want to welcome the general public onto that land for fun and profit, and especially if people other than the property owner live on that land.
So, it’s fairly widely accepted by most even on the pro-gun side that some restriction of the RKBA by someone must be tolerated in US society. If anything, it’s the Ninth Amendment that allows a de facto form of gun control by property owners. Even when the owner is the government or a government agency. Like the US Postal Service. Or even military organizations.
However, the Ninth Amendment also allows us to say “even if you say that doing such-and-such with a gun is not protected by the Second Amendment, that doesn’t necessarily mean it’s not an unenumerated right to do so, which must be held to be equal to any other under the Ninth Amendment.”
Say you don’t recognize carry of weapons as being part of the 2A (which I strongly disagree with; I’m just using it for the sake of the argument), that doesn’t mean it isn’t a right. Nor that it is a lesser right than the “core” of the 2A. Why? Because the Ninth says you can’t treat rights that way, at least not solely on the basis of the right not being enumerated.
More on this subject later. Please share your thoughts.
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