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Does the 9th Amendment Protect The Right To Bear Arms?

Sandy Levinson raises this interesting issue:

One of the valuable points made in Saul Cornell's book on the Second Amendment is that self-defense was treated as a "common-law" right and not a "constitutional right" at the time of the Framing. So, as a matter of sheer historical accuracy, Scalia was probably wrong in suggesting that the Second Amendment had anything to do with safeguarding a right of self-defense. But, of course, there are other amendments to the Constitution, including the Ninth Amendment, which reminds us that there are rights beyond the ones enumerated in the first eight amendments.

. . . It is sad that supporters of gun rights are stuck with Scalia's opinion instead of one that truly engages with the materials of American constitutionial history and theory and provides a much more plausible backing for the decision.

Read the whole thing.

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    Look, the real problem that (5.00 / 2) (#6)
    by frankly0 on Fri Jun 27, 2008 at 12:24:49 PM EST
    faces even a 9th Amendment interpretation is that posed by Stevens' dissent.

    He shows quite clearly that there were at least two known pre-existing statutes in state Constitutions that expressly mentioned an individual's right to the use of guns for self-defense and/or hunting. It was obvious that at least some of the Framers involved in the drafting of the 2nd amendment would have been quite aware of those formulations.

    Yet as the 2nd amendment was drafted, none of that language made it into the amendment.

    In the face of this history, I don't see how one plausibly maintains either that the 2nd amendment was intended to grant to individuals the right to use weapons, or that even that the 9th amendment was intended to cover it. The 9th amendment, presumably, was intended to cover those things that it would not have occurred to the Framers to have expressed. I don't see how that argument gets made with regard to something like an individual's right to use weapons, given that a conscious choice certainly appears to have been made to omit such language (which would literally have required only an additional two or three words regarding self defense in the 2nd amendment.

    To quote from (5.00 / 1) (#8)
    by frankly0 on Fri Jun 27, 2008 at 12:34:21 PM EST
    Stevens' dissent:

    Article XIII of Pennsylvania's 1776 Declaration of Rights announced that "the people have a right to bear arms for the defence of themselves and the state," 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that "the inhabitants of this state shall have the liberty to fowl and hunt
    in seasonable times on the lands they hold, and on all other lands therein not inclosed," id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed "[t]hat the people have a right to bear arms for the defence of themselves and the State."

    Later, he also notes:

    In addition, Madison [who played a major role in the framing of the 2nd amendment] had been a member, some years earlier, of the committee tasked with drafting the Virginia Declaration of Rights. That committee considered a proposal by Thomas Jefferson that would have included within the Virginia Declaration the following language: "No freeman shall ever be debarred the use of arms [within his own lands or tenements]." 1 Papers of Thomas Jefferson 363 (J. Boyd ed. 1950). But the committee rejected that language, adopting instead the provision drafted by George Mason.


    Parent
    Exactly (5.00 / 0) (#11)
    by eric on Fri Jun 27, 2008 at 12:53:39 PM EST
    inasmuch as you buy into the argument that the Ninth stands for anything at all, you have to consider the fact that arms are discussed elsewhere in the constitution, and it wasn't in the context of self-defense.

    BTW, my view of the Ninth is this:  the framers knew they couldn't put together an exhaustive list of all of the rights that we have or are meant to have.  They merely wanted to express this fact.  If they wanted us to integrate "common law rights" into the ninth, they would have said so.  They could have written, for example, "All common law rights which are now enjoyed by the people shall not be abridged."
    That would do it.  But they didn't write that.  They wrote that, yes, there are other rights and the fact that we don't list them here isn't mean they don't exist.

    Parent

    heh (none / 0) (#23)
    by jimakaPPJ on Fri Jun 27, 2008 at 01:57:40 PM EST
    In the face of this history, I don't see how one plausibly maintains either that the 2nd amendment was intended

    There's no intent involved. It said it.

    Parent

    Uh, (5.00 / 0) (#35)
    by frankly0 on Fri Jun 27, 2008 at 03:16:44 PM EST
    except that it didn't "say it".

    The language can hardly be claimed to be unambiguous as to whether it was referring to civilian uses of "arms" or only military uses.

    Parent

    No, (1.00 / 0) (#38)
    by jimakaPPJ on Fri Jun 27, 2008 at 03:35:18 PM EST
    It really isn't hard to understand. Try this.

    The Second Amendment is not that hard to understand -- not if the person reading it has a lick of sense. I'll prove it.

    What does this sentence (let's call it S1) mean?
    My over-exuberant neighbors having a wild party next door, my wife called the cops.

    Not terrific English grammar but the meaning is clear enough. Cause: The noise made by the neighbors. Effect: A telephone call to the authorities.

    Now what if I told you what I really meant when I wrote S1 was that my neighbors threw a noisy party because my wife called the cops?  What would you say? (Except that I am a lousy writer and should never have been published in American Thinker.)

    Link


    Parent

    Sorry that doesn't (5.00 / 0) (#43)
    by eric on Fri Jun 27, 2008 at 04:05:57 PM EST
    do it for me.

    It isn't about cause and effect, its about a stated goal (Well regulated militia), a reason for the stated goal (necessary to the security of a free state), and the way to achieve the goal (bearing arms).

    So, your example is better stated thusly:  A quiet neighborhood, being necessary for a good night's sleep, the right to report loud parties to the police should not be infringed.

    Now, where does that get us?  Nowhere.  You might read that different than me, depending on how you read the second amendment.  I read it as if there is a loud party, you can call the police.  The NRA would read it as "you always have the right to call the police".  And while I might even agree that you have the right to call the police, I think that you only have that right in certain circumstances...

    Point is:  playing word games doesn't really help.


    Parent

    Yeah, (5.00 / 0) (#45)
    by frankly0 on Fri Jun 27, 2008 at 04:22:55 PM EST
    one of the things about Scalia's textual interpretation is that he admits that the first clause of the Second Amendment is "purposive". But he gives no compelling account of why that purpose shouldn't be regarded as "the" purpose, rather than simply as "a" purpose.

    It's especially strained to say that the first clause only is stipulating one purpose among many possible when the Framers would have been well aware of other pre-existing statutes and language that articulated clearly an additional, very general purpose: self-defense.

    I really find Stevens historical argument very hard to shoot down. The Framers knew of a number of ways the 2nd amendment might have been expressed, a number of them attaining the precise and express effect that Scalia insists they did indeed mean in the 2nd amendment, and yet they chose alternative language that did not have that clear and express meaning. All it required was an insertion of the words "self defense", and the deed would have been done. They chose otherwise.

    Parent

    Deep (none / 0) (#39)
    by frankly0 on Fri Jun 27, 2008 at 03:41:35 PM EST
    squeaky? (none / 0) (#36)
    by sarcastic unnamed one on Fri Jun 27, 2008 at 03:25:10 PM EST
    The language can hardly be claimed to be unambiguous as to whether it was referring to civilian uses of "arms" or only military uses.


    Parent
    OK (none / 0) (#51)
    by squeaky on Fri Jun 27, 2008 at 06:26:03 PM EST
    What is the question? The quote was a bit too oblique for me to get your point. Please expand.

    Parent
    I took this comment of yours (none / 0) (#53)
    by sarcastic unnamed one on Fri Jun 27, 2008 at 06:41:30 PM EST
    to unambiguously mean that unless you were a member of a militia you have no right to bear arms.
    I do not see how anyone could make the leap that the 2nd amendment applies to anyone who is not in a well regulated militia.
    Is that not what you meant?

    Parent
    Yes (none / 0) (#54)
    by squeaky on Fri Jun 27, 2008 at 06:48:22 PM EST
    That is why I think that Scalia is FOS if he allows the guns but not the Militias.

    Now had he argued what you were arguing in the other thread, I might have had to agree. But he would never do that because there are too many unenumerated rights that Scalia is against, irregardless of whether it was common practice when the Bill of Rights was written.

    Parent

    Good, for a second there I was concerned (none / 0) (#55)
    by sarcastic unnamed one on Fri Jun 27, 2008 at 06:57:44 PM EST
    that what we had here was a failure to communicate.

    So you disagree with frankly0 (and me) on that point, you think its meaning is unambiguous. Hence my comment above asking for your comment regarding its ambiguity, or lack thereof.

    I don't understand the next bit though:

    That is why I think that Scalia is FOS if he allows the guns but not the Militias.


    Parent
    I Read The 2Nd (none / 0) (#56)
    by squeaky on Fri Jun 27, 2008 at 08:00:41 PM EST
    As regards bearing and keeping arms specific to belonging to a militia.

    As far as the second amendment goes there can be no argument, as far as I am concerned, for allowing arms but not allowing me to form a militia to protect the security of my free state. I read it as pertaining to groups of people who are interested in fending off those who would take away my freedom.

    So for Scalia to argue that guns are OK, as an individual right but  nary saying a word about forming militias seems bogus to me. I have no doubt that anyone forming their own well regulated militia would be in jail, if not gitmo, and Scalia would not be running to their defense.

    The ninth would be a better platform to argue individual rights that were taken for granted, like owning guns and smoking weed.

    Parent

    Here's how one says that both (5.00 / 0) (#40)
    by frankly0 on Fri Jun 27, 2008 at 03:45:50 PM EST
    civilian and military uses are comprehended:

    Article XIII of Pennsylvania's 1776 Declaration of Rights announced that "the people have a right to bear arms for the defence of themselves and the state,"

    The Framers would have been aware of that language. They chose not to use it.

    Parent

    jim, surely (none / 0) (#58)
    by cpinva on Sat Jun 28, 2008 at 12:12:48 AM EST
    you can read simple english.

    2A expressly states the single purpose for an individual to bear arms:

    A well regulated Militia, being necessary to the security of a free State
    nothing else.

    the authors, had they intended it to be a universal, individual right, for no other reason than to own guns, why bother inserting the first line? they didn't need to, yet, they most conspicuously did.

    only an idiot, like you and scalia, wouldn't be able to see the obvious.

    9A doesn't do it either, for the reasons noted by another poster, it makes no referrence to previously existing "common law" rights, which they easily could have inserted. again, they most conspicuously didn't.

    this ruling will be struck down in the near future, as having no basis in history or law. scalia just makes this stuff up as he goes.

    Parent

    hehe (1.00 / 0) (#65)
    by jimakaPPJ on Sat Jun 28, 2008 at 10:07:04 PM EST
    And only an idiot such as you continue to prove you to be have forgotten that if they had wanted it to be militia only, they could have written:

    The right to bear arms is restricted to members of the militia.

    Hugs and hugs, sweetie. I've missed you too.

    Parent

    yadda yadda DA (none / 0) (#67)
    by jimakaPPJ on Sun Jun 29, 2008 at 01:27:19 PM EST
    Have an actual comment?

    No?

    Surprise, surprise.... not.

    Parent

    hehe (none / 0) (#70)
    by jimakaPPJ on Mon Jun 30, 2008 at 02:03:10 PM EST
    Clearly this was a pact (none / 0) (#60)
    by Rojas on Sat Jun 28, 2008 at 04:38:19 AM EST
    not to dissarm the people nor the various state's milita. Who were made up of the people by the way.
    The right of the people to bear arms for self-defense, individually or in the service of the milita is fundimental to these rights as they obviously did not wish to trust to the common law for their protection.


    Parent
    Umm, as much as I like Scalia's result (none / 0) (#1)
    by scribe on Fri Jun 27, 2008 at 12:03:16 PM EST
    there are a number of issues I have with how he got there, not the least of which is the Ninth Amendment.

    In the first instance, he did not work out how much scrutiny the regulations would get.  At one point, he deems the Second Amendment right an enumerated right, thus one protected by a higher degree of scrutiny.  I suppose he figured he was being a bit of a snarker when he dropped in a cite to Footnote 4 from Carolene Products at that point, feeding the audience who like to (try to) ram stuff into the faces of Democrats and New Dealers ("See!  We can turn your precedents and prejudices against your policy preferences!")
    But, after declaring the Second Amendment right "fundamental" and "enumerated", he went on to tell about all the sorts of regulations which might survive constitutional attack.  It's not much of a right if it's so riddled with exceptions that it's meaningless.

    As to the Ninth Amendment, I think Scalia's fundamental problem (along with his clerks') is that to them, any reference to the Ninth Amendment automatically drags in all the reproductive rights cases - Palko, Griswold, Roe, you name it - and the sexual conduct cases - Lawrence v. Texas (inter alia)- all of which are anethema to Scalia's religiosity.  If you think Scalia's Republican orthodoxy is on display in the last two weeks' opinions, think about how his religious orthodoxy would display itself were the opinion he wanted to write one that required him to hold his nose and cite Griswold (or Roe) favorably.

    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:

    [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, 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.

    But, people said a lot the same about Second Amendment rights 35 or 40 years ago, when the NRA started their campaign in earnest.  Go figure.

    Question for you (none / 0) (#4)
    by flyerhawk on Fri Jun 27, 2008 at 12:14:34 PM EST
    Have there been any rights directly derived from the Ninth other than the right to privacy, which I guess is as much derived the 4th and 5th as the 9th?

    I am referring to SCOTUS decisions defining rights based solely on the 9th.

    BTW, great post.

    Parent

    I am not aware of any (none / 0) (#9)
    by scribe on Fri Jun 27, 2008 at 12:47:11 PM EST
    but I think the closest comes from Griswold - that's a concurrence and not the opinion of the Court.

    Parent
    United Public Workers v. Mitchell ... (none / 0) (#31)
    by Robot Porter on Fri Jun 27, 2008 at 02:51:36 PM EST
    argued that citizens have an inviolate right to work as political party officials or workers, and that such a right is derived from the 9th and 10th Amendments.

    There are countless unenumerated rights that haven't been addressed by the Supreme Court because they simply haven't been infringed upon enough for cases to reach them.

    The main point of the Amendment is simply so that zealous future governments won't use the Constitution as a guideline for what rights they can infringe.  Because it isn't stated, doesn't mean it's not a right.

    And even though the Amendment isn't mentioned a lot in Supreme Court cases, it still has had a profound effect.

    Parent

    He assumes "self-defense"... (none / 0) (#2)
    by Dadler on Fri Jun 27, 2008 at 12:10:02 PM EST
    ...was as ingrained in late 18th century minds as ours.  Violent crime was, however, from all evidence, practically non-existent in late 18th century America.  Guns in general were associated with militias and national defense.  Then second amendment is entirely militia-oriented.  A standing army was expensive.  Why do you think the revolutionary war leaders were constantly complaining about their militias being pitifully armed and not ready for battle at all? --  those militia who even showed up at all.  Not enough men had guns in their own possession to fight the British.  We didn't even have gun manufacturers here then.

    That said, sure, obviously, there's a natural instinct in every organism to survive, and that instict surely includes fighting to the death if one's life or safety is directly threatened.  That has nothing to do with any law, except the law of nature.  It is an instinct, not an evolved concept of conduct.  Raw, unfiltered instinct.  And if you're going to use this instinct (that everyone from humans to microorganisms possess) as the basis for allowing everyone to own a gun for protetction, then you have a very hard time allowing for any regulation at all regarding the carrying of firearms in public.  Carjackings and muggings and workplace shootings, etc., are real and one cannot logically argue that a gun can be in the home for protection but not out in the world, where you come into contact with many more people likely to harm you, where you will be on a dark street late at night returning to your car after a date, or whatever sketchy situation we all find ourselves in.

    That said, the Ninth Amendment argument is much stronger, but it makes sense Scalia sticks to his weak game -- he's not half as bright as advertised.  Out of the box he is not.

    Oh, come on (none / 0) (#10)
    by Jim J on Fri Jun 27, 2008 at 12:53:11 PM EST
    Of course there was "violent crime" back then. There were Indian attacks on settlers in this country until the late 1800s, well into the Victorian era.

    I just don't know where people are coming from with this "the founding fathers couldn't have foretold X" stuff. They didn't have to foretell anything -- life was harder and much more violent then than now.

    Parent

    Americans are almost as violent as (none / 0) (#17)
    by Salo on Fri Jun 27, 2008 at 01:28:03 PM EST
    teh English.  yep.

    No violent crime, indeed.

    Parent

    One might be correct in saying (none / 0) (#12)
    by scribe on Fri Jun 27, 2008 at 12:55:25 PM EST
    "violent crime as we know it was close to non-existent in late 18th Century America", if one chooses to overlook the constant, low-level insurgency (or resistance*) offered by Native Americans.

    And if one chooses to overlook all the other routine dangers of frontier life which led people to go about armed pretty regularly.

    While the nature of the violent crime may have changed, the presence (or potential) of violence has not.  Accordingly, while the nature of the threat which is perceived to exist may have changed, the (perceived) need for self-defense has not.

    -
    *  When I was in grade school or junior high, one of our classes was colonial (local) history. Establishing the colony, colonial development,  defrauding the natives, French and Indian War, Revolutionary War, etc.  The teacher made the comment, actually quite a profound insight, that for those of us who had trouble remembering which side won, there was a simple rule:  "if the settlers won, the books called it a battle.  If the Indians won, it was called a massacre."

    Parent

    Two provisions of Mass. Decl. of Rights (none / 0) (#32)
    by befuddledvoter on Fri Jun 27, 2008 at 03:07:12 PM EST
    March 2, 1780.  Note right to bear arms clause mirrors that of Fed. Constit., but Art. I clearly provides for right to defend oneself as constitutioal guarantee.

    Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

    Art. I.--All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.


    Parent

    From wiki:
    As many New Englanders were originally from England, game hunting was a familiar beneficial skill when they immigrated to the New World. Most northern colonists depended upon hunting, whether they hunted themselves or purchased game from others. As a method of obtaining protein for consumption, hunting was preferred over animal husbandry as domestic animals were expensive and more work was required to defend domestic animals against natural predators, Native Americans or the French.[17] Commonly hunted and consumed game included deer, bear, buffalo and turkey. The larger muscles of the animals were roasted and served with currant and other sauces, while smaller portions went into soups, stews, sausages, pies and pasties.[18]

    Venison was the most popular game. The plentiful meat was often potted or jerked, and its tripe was popular as well. Venison was especially popular during the Thanksgiving season. Buffalo was an important protein source until roughly 1770, when the animals were over-hunted in the eastern United States. Bear were numerous in the northern colonies, especially in New York, and many considered the leg meat to be a delicacy. Bear meat was frequently jerked as a preservation method.[19]

    I assume they were also used for defense from attacks, whether they be attacks of native Americans or European tyranists.

    Parent
    Too Bad (none / 0) (#22)
    by squeaky on Fri Jun 27, 2008 at 01:37:09 PM EST
    That Scalia won't go there though, because it will open up a can of worms on his tidy originalist mindset regarding the constitution.

    Parent
    Squeaky.... (none / 0) (#29)
    by kdog on Fri Jun 27, 2008 at 02:44:27 PM EST
    Been meaning to tell you if you wanna start that militia....I'm in:)

    We can protect the citizens of NY from the State of NY and the feds.

    But can I be an archer?  I don't want a gun:)

    Parent

    OK (none / 0) (#52)
    by squeaky on Fri Jun 27, 2008 at 06:27:48 PM EST
    Once we clear it with Scalia, I am ready. Archer is good, you are in. I will stick to blowgun or hand to hand, as I am not keen on guns either.

    Parent
    What Kinds of Crime Were Punished? (none / 0) (#24)
    by sarcastic unnamed one on Fri Jun 27, 2008 at 02:14:39 PM EST
    Crime in colonial Virginia consisted of many of the same harmful acts still seen today such as murder, theft, and disturbing the peace.


    Parent
    I'll bet this administration (none / 0) (#28)
    by eric on Fri Jun 27, 2008 at 02:39:14 PM EST
    would love to bring back the "Ducking Stool".  Fits their MO.

    Parent
    I'll buy it (none / 0) (#3)
    by Steve M on Fri Jun 27, 2008 at 12:10:26 PM EST
    I'm not stuck with the same disdain for unenumerated rights as Scalia is.  I think there's a right to self-defense (in international law, it's universally recognized as a human right) and I would have no problem locating it in the Ninth Amendment.

    The 9th Amendment terrifies justices (none / 0) (#5)
    by davnee on Fri Jun 27, 2008 at 12:18:16 PM EST
    of all stripes and with good reason.  I love the 9th Amendment personally, and I believe very strongly that it has substantive meaning.  But, heaven help me, I would never want the responsibility of gazing into that crystal ball and emerging with a principled report on what I'd seen.  Is it a catch-all for the common law rights existing at the time that the founders didn't have the time or energy to cite in detail?  Meh.  That only takes you so far and may point you in directions you don't want to go.  Is it a marker for social progress?  Nice thought.  I'm not sold.  And I'm no prude about judicial activism, but the judicial power that would flow from an unshackled and evolutionary 9th Amendment does give me pause.

    Much Better Argument (none / 0) (#7)
    by squeaky on Fri Jun 27, 2008 at 12:26:44 PM EST
    IMO, not that I am anywhere close to being a constitutional scholar. Seems to me Scalia likes guns and believes that he should have a right to bear them. Stretching the 2nd was much safer for him than mucking around with the 9th, because that would come back to bite him in the a$$.

    I believe (none / 0) (#14)
    by Makarov on Fri Jun 27, 2008 at 01:04:15 PM EST
    I once saw Scalia say the 9th didn't protect any specific right, that it was essentially meaningless. I think it was one of those panels on that PBS tv show that discusses hypothetical cases.

    I could be wrong, though.

    Parent

    Makes Sense (none / 0) (#20)
    by squeaky on Fri Jun 27, 2008 at 01:34:11 PM EST
    Because he can never use the 9th. Odd that all of a sudden the framers lapsed on that one according to Scalia. Maybe they were smoking refer when they wrote it.

    Parent
    I certainly have that impression of Scalia's (none / 0) (#21)
    by frankly0 on Fri Jun 27, 2008 at 01:37:01 PM EST
    view about the 9th amendment.

    How odd, though, that the Framers, whose every last jot and tittle of intent we are supposed to follow slavishly by Scalia's lights, should have devoted the entire text of one item in the Bill of Rights to an utterly vacuous assertion.

    Parent

    It might be my favorite amendment... (none / 0) (#25)
    by kdog on Fri Jun 27, 2008 at 02:23:07 PM EST
    of all, because it's so broad.

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

    Too bad it gets so little play.

    Parent

    But, what about the British disarming (none / 0) (#13)
    by Exeter on Fri Jun 27, 2008 at 01:01:08 PM EST
    the colonists during the early phases of revulutionary war? My understanding, is that at the time, the colonists argued that the common law and the militia law was that they had a right to bear arms. Then, during the writing of the constitution, they referenced the British removing arms, and like most of the constitution, it was a response to the colonists mistreatment by the British.  

    I'd say yes.... (none / 0) (#16)
    by kdog on Fri Jun 27, 2008 at 01:27:05 PM EST
    the 9th protects the right to arms...and the right to possess marijuana for that matter.  

    I find it very hard to believe the founders ever meant for it to be illegal to own a gun or grow/smoke some reefer.

    Thomas Jefferson (none / 0) (#18)
    by squeaky on Fri Jun 27, 2008 at 01:30:42 PM EST
    Grew his own, and particularly seemed to like to smoke it when he had a cold.

    Parent
    The Spliff Clause. (none / 0) (#19)
    by Salo on Fri Jun 27, 2008 at 01:32:14 PM EST
    nth Amnedment. Jah, say de 'erb is is Good. General George agrees. So Does Benny From Philly.

    Parent
    I believe, (none / 0) (#26)
    by bocajeff on Fri Jun 27, 2008 at 02:28:03 PM EST
    The marijuana (as well as other drugs in my own personal opinion, but let's use marijuana for this post) will become fully legalized when the left adopts the freedom issue instead of the "well, it's not a bad drug" or "it's better than beer" arguments.

    When freedom is the argument then the left can be joined by libertarians and conservatives in the William Buckley sense who believe government has no reason to keep adults from getting themselves high or low.

    I also believe that is the main argument in gay marriage as well - it's about freedom and not about marriage. But then again, I don't believe the government should be in the marriage business as well.

    As for guns, I was anti gun until the 1992 L.A. riots. I quickly changed my mind when the cops had no control and self defense took on a different meaning.

    I agree.... (none / 0) (#27)
    by kdog on Fri Jun 27, 2008 at 02:35:18 PM EST
    The problem is if the left (or the right for that matter) sticks to the freedom arguments, then it's hard for them to make the anti-freedom argument on the next issue....For example, the anti-freedom stance on cigarette smoking from the left, anti-freedom stance on sex from the right.

    It's why I don't have a political place to lay my head...I always want to err on the side of the freedom....be it guns, drugs, or sex. So the left and the right want no part of me:)

    My utopia might be a messy dangerous world, but it would be a heck of a lot more fun, exciting, and most important all....free:)

    Parent

    Perhaps... (none / 0) (#33)
    by MileHi Hawkeye on Fri Jun 27, 2008 at 03:10:22 PM EST
    ...but the "it's better than beer" approach has worked well in getting the job done in Denver.  It is 2 for 2.

    Parent
    But the job is not done Mile.... (none / 0) (#37)
    by kdog on Fri Jun 27, 2008 at 03:28:21 PM EST
    The "better than beer" approach or "only for the sick" approach are merely slight improvements.

    For example...Denver's new law is only good up to an ounce.  And I don't think hashish is covered.  It's not enough.

    Don't get me wrong, you guys are miles ahead of NYC, but I say the best approach is "the state has no right to prohibit it" aka "the freedom approach". That's how we win once and for all.  Also, the "better than beer" approach concedes that the state has the right to prohibit substances that aren't deemed "better than beer".  That is somewhat self-defeating for an anti-prohibition freedom advocate.

    Parent

    Hashish? (none / 0) (#41)
    by MileHi Hawkeye on Fri Jun 27, 2008 at 03:47:10 PM EST
    Goodness, I haven't seen any of that in a long, long time!  You're just bringing that up to torture me, aren't you?!?

    Yeah, I know we've got a long way to go.  I'll take a little bit of progress as opposed to the status quo.  Baby steps as it were.  

    I'd like to think there are many ways to slay this dragon--better than beer, helps the sick, freedom or just "it's a plant that whatever diety put on the face of the earth for crying out loud".  Whatever shakes people out of their misconcieved notions.  

    Just as long as we keep fighting the good fight.

    Parent

    I see where you're coming from..... (none / 0) (#42)
    by kdog on Fri Jun 27, 2008 at 03:58:54 PM EST
    Whatever works...usually I'd agree completely.

    I just think we gotta be careful not to make a de-facto admission that the state has the right to forbid such things in order to get a small victory.

    No torture intended my friend, but you're right it is rather hard to come by...why is that?

    When the Afghani or Lebanese goodness is around I stock up for a year and use it very sparingly....one fingernail-clipping sized sliver at a time:)

    Parent

    Why is that? (none / 0) (#47)
    by MileHi Hawkeye on Fri Jun 27, 2008 at 05:32:48 PM EST
    I'm sure somehow, someway, it is all Obama's fault.  I've only heard rumors of it out here--maybe 'cause I old, maybe 'cause we don't have the right immigrant population--who knows.

    I hear what you're saying.  But, the medical marijuana issue is very near and dear to my heart, as you might imagine.  It really peeves me that people who are truly hurting can't get something that could help take their pain away. That is a blatent 9th amendment violation in my mind and heart.  

    One thing I'm surprised hasn't worked better is the tax revenue aspect of legalization.  I'd think that would have a strong appeal, but apparently not.  

    Parent

    One of the tragedies (none / 0) (#34)
    by MichaelGale on Fri Jun 27, 2008 at 03:11:30 PM EST
    of government was allowing such a broad interpretation for the right to bear arms, in my opinion. and in addition, giving the NRA the power to form the policy.

    I, too, was anti gun with out very rigid policies and still am. However, with how the 2nd amendment was expanded for gun ownership,I think people are foolish to not have a gun in such a violent society where just about anyone can own one.  

    Parent

    The Problem Is (none / 0) (#30)
    by kaleidescope on Fri Jun 27, 2008 at 02:48:11 PM EST
    That Scalia doesn't believe in the 9th Amendment.  He likes the 10th though.

    Nice law review article (none / 0) (#44)
    by befuddledvoter on Fri Jun 27, 2008 at 04:13:23 PM EST
    deals with earliest constitutional provisions and cites to John Adams and Otis on right of ordinary citizen to bear arms in self-defense.

    It is clear that the personal right to keep arms in the home, to carry them in public, and to use them in either place for self-defense was deemed fundamental by Adams and his contemporaries. This individual right of armed self-defense was to be incorporated by Adams in the Massachusetts Declaration of Rights of 1780, and by Madison in the second and ninth amendments of the United States Constitution a decade later.

     

    Er.. (none / 0) (#46)
    by frankly0 on Fri Jun 27, 2008 at 04:42:24 PM EST
    except that the term "self defense" never made it into the text of the 2nd Amendment.

    Actually, your argument as it stands would actually argue the other way: many prominent Framers would have been well aware of the significance of the concept of "self defense" when it came to "bearing arms", yet not a trace of such language made its way into the 2nd amendment.

    Parent

    After the Bill of Rights was ratified (none / 0) (#48)
    by sarcastic unnamed one on Fri Jun 27, 2008 at 05:35:14 PM EST
    were the arms belonging to non-militia members confiscated? Were non-militia member gun owners instructed hand their weapons over to the State? Were there trials and imprisonments of those People who, despite not being militia members, refused to give up their arms? Even one 1791-ish newspaper article/broadside/whatever, saying that non-militia members had no right to own guns?

    If not, I think we can be reasonably confident that the 2A did not limit the right of the People to bear arms, whether they be members of a well regulated militia or not.

    Hrm (none / 0) (#49)
    by Steve M on Fri Jun 27, 2008 at 06:08:46 PM EST
    Who has argued that the 2nd Amendment affirmatively took away rights?  The question is whether it guarantees rights against adverse government action.

    Parent
    Splitting hairs. (none / 0) (#50)
    by sarcastic unnamed one on Fri Jun 27, 2008 at 06:25:51 PM EST
    Not at all (none / 0) (#57)
    by Steve M on Fri Jun 27, 2008 at 08:32:50 PM EST
    I'm disappointed that you think your argument has any validity.  Just because a practice wasn't banned in the immediate wake of ratification hardly proves that the Founders intended that it could never be banned.

    Parent
    It's disingenuous.

    Show me any 18th Cent hue and cry against the 2A because it said that the arms owned and used on a daily basis by generation after generation of the People, often for their very survival, could now be banned.

    There was none. Because everyone knew what the 2A really meant. And it did not mean that they had no right to keep and bear arms.

    Parent

    Uh (none / 0) (#63)
    by squeaky on Sat Jun 28, 2008 at 02:28:29 PM EST
    I think that you mean the 9th amendment, not the 2nd which refers to militias. Your argument belies the point that the 2nd amendment does not have anything to do with

    the arms owned and used on a daily basis by generation after generation of the People, often for their very survival

    That was an unenumerated right, so common that it needn't be stated. But the English made a distinction, they wanted to disarm militias but had no problem with individuals owning guns.

    The initiative of the English, is directly what the 2nd amendment speaks to, imo.


    Parent

    No (none / 0) (#64)
    by Rojas on Sat Jun 28, 2008 at 04:50:40 PM EST
    It was because of the arbitrary nature in wich the common law rights of Englishmen to be armed were abused, actually dissarmed through the game laws for example, that the rights were codified in the English Bill of rights of 1689.

    This was the experience the framers drew from. It was recent history still fresh in their minds.


    Parent

    Game Laws (none / 0) (#68)
    by squeaky on Sun Jun 29, 2008 at 02:49:09 PM EST
    Well if that is what the basis of the 2nd amendment was, they must have been drunk or stoned, because it specifically addressed militias.

    But, hey maybe the new world was so scary and different than England, that militia were formed solely for the purpose of hunting game.

    Parent

    Never going to happen (none / 0) (#59)
    by daryl herbert on Sat Jun 28, 2008 at 01:02:27 AM EST
    Recognizing the 9th Amendment creates inconvenient side effects for both liberal and conservative justices.  Just about the only one who might go for it is Anthony Kennedy, given that he has some libertarian tendencies and that he would have complete control over its meaning, being the swing vote.

    Self Defense v Self Offence (none / 0) (#61)
    by squeaky on Sat Jun 28, 2008 at 10:31:11 AM EST
    A subsequent study conducted in three U.S. cities found that guns kept in the home were 12 times more likely to be involved in the death or injury of a member of the household than in the killing or wounding of a bad guy in self-defense.

    WaPo

    Maybe Scalia is hoping that this ruling will help realize the GOP dream of permanent Republican rule.