The Ninth Amendment to the Constitution can provide a more promising justification than the Second Amendment for a constitutional right of individuals to own firearms outside of a military context. It reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Why not just declare that individual ownership of guns for all lawful purposes is one of the unenumerated rights?
The problem is the open-ended nature of the Ninth Amendment. If some people assert the right of individual gun ownership, others might assert a right to assisted suicide or child pornography. To avoid any use of the Ninth Amendment, the Supreme Court’s gun-rights proponents prefer to rest their case on the Second Amendment.
But the Second Amendment basis is almost laughably poor, as can be seen by analysis of District of Columbia v. Heller (2008) which first ruled that the Second Amendment contains an individual right to gun ownership. The Amendment has only 27 words, and the first 13 concern militias, not individual rights. It reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
On the face of it, the Amendment seems to be about state militias. This impression is reinforced by the context of the Bill of Rights. The primary reason for having a Bill of Rights, the first ten amendments to the Constitution, was to protect the states against any possible tyranny by the newly formed federal government. Many founders felt threatened by George Washington’s advocacy of a federal standing army. The Second Amendment seems intended as a guarantee that the states will be able to have militias capable of repelling any armed incursion of their rights by the federal government.
Against this reasoning, Justice Scalia, writing for the majority in Heller, calls the initial clause about the importance of state militias the “prefatory clause” and claims that it doesn’t control the “operative clause” that follows. He notes that “the right of the people” in the operative clause shouldn’t be read as limited to the militia context of the prefatory clause because the phrase “right of the people” is used in the First and Fourth Amendments to refer to individual rights, as is the reference to “the people” in the Ninth Amendment.
I don’t find this remotely convincing. Imagine this declaration: “Helping the poor being the cornerstone of Christian charity, Mr. X is this year’s Exemplary Christian.” It strikes me as absurd to think that Mr. X was getting the award for regular church attendance on the grounds that sometimes within the Christian community the term “exemplary Christian” is applied to people for regularly attending church.
Here's another reason to be skeptical of Scalia’s claim that the original understanding in 1789 of the phrase “to keep and bear arms” referred to individual possession and use of firearms independent of any military context. When congress was debating the Bill of Rights in 1789, a draft of the Second Amendment was proposed, beginning with “A well regulated militia” and continuing with language similar to our current Second Amendment. Mr. Boudinot suggested ending the amendment with these words, “but no person, religiously scrupulous, shall be compelled to bear arms.” Mr. Gerry suggested instead the phrase “belonging to a sect, religiously scrupulous of bearing arms.”
The reference here is clearly to members of the so-called “peace churches,” such as the Quakers, Moravians, and Mennonites. There is no reason to suppose that members of these churches refrained from hunting game with firearms, as was common at the time. The reference of “to keep and bear arms” must refer to the retention and use of arms for a military purpose or the proposed exemption of the “religiously scrupulous” wouldn’t make sense. Scalia claims to be interpreting the Second Amendment as its words were understood at the time of enactment, and the best evidence we have of such understanding is the discussion of the Amendment’s wording by those who drafted it.
Writing in relation to a more recent Second Amendment case, 21 eminent historians specializing in the history of England and America during the late eighteenth century affirm that the right to “have arms” referred to the military use of firearms, such as in a militia that the landed gentry could organize in order to repel any royal encroach upon the gentry’s rights.
In sum, it may make good sense to appeal to the Ninth Amendment as the basis for a constitutional right of individuals to own firearms, because individual firearm ownership was so common in Colonial America, primarily for hunting game. I’d like to see that argument made in place of the inaccurate history and tortured logic of the Heller majority.
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