Expert: Robert P. Firriolo - 11/18/2009

Question
Many argue the 2nd A is only a group, or militia right, but not an individual right.  Even if this were so, doesn't the 9th A. reserve the un-enumerated rights to the people?  In other words, God-given rights, like the right to self-defense don't require enumeration or the permission of the State.  I'm an attorney but enjoy the discussion of these issues by intelligent people and not the normal hysteria in the media.  Thanks.

Answer
Many used to argue that the 2A protects only a group or militia right, but not many can argue that today with any credibility. The US Supreme Court held last year that it protects an individual right. Even the justices in the minority in D.C. v. Heller did not say that the 2A is a collective right. But your question about the 9A is a good one. It is not, however, one amenable to be fully explored in this Q&A forum.

The 9A states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Founders were concerned that the list of rights in the Bill of Rights would some day come to be viewed as an exclusive list of rights, with the result that those rights not mentioned could implicitly be infringed by government action. Since the right to keep and bear arms is explicit in the Bill of Rights, it is an enumerated right, not an unenumerated one as contemplated by the 9A. It is therefore debatable as to how the protections of the 9A would apply to that right, if at all.

Your question raises a pre-existing right to self-defense. It is probably true that the Founders would have considered that right to be within the unenumerated rights protected by the 9A. It would not be an unreasonable argument that a law that prohibited the exercise of self-defense would be open to a 9th Amendment challenge. Whether such a law would survive the challenge is too broad a question to really deal with here in the abstract.

For a fair discussion of how the 9A has been applied and interpreted, see this article: http://is.gd/4Yiem