Does the Ninth Amendment carry any weight with textualists?

This is very difficult to do. The 9th Amendment was created to solve problems that have since become a fait accompli, or moot. tl;dr, see bold and link to cites at bottom.

In 1791 the scope of most Constitutional provisions were widely disputed, and the most prominent debate was over the extent of federal power and a fear of the federal government turning tyrant.

Assume the bill of rights passes without the 9th Amendment. Suppose the Whiskey Rebellion (1794) had turned south towards Virginia instead of marching on Pennsylvania. You are a wealthy slaveholder in Virginia and General Washington’s militia army passes through the area en route to head off the veterans. You own an arsenal of weapons and powder in case of slave rebellion, some of which you have keep on behalf of the State militia for years. The army siezes some of your powder without compensation, reasoning that they have a right to use militia storehouses, then marches away. A couple weeks later you and the State of Virginia sue the federal government for violating the fundamental right to control your own property, and also the 2nd and 5th Amendments which state: “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” and “nor shall any person […] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.

The year being 1794 and the bill of rights being passed in 1791, there are several points of dispute. Does the 2nd Amendment’s right to keep and bear “Arms” extend to powder stores? The Court rules that the army did not commandeer enough powder to leave the plaintiffs arsenal inoperative, and therefore did not run afoul of the Second Amendment. Have you been deprived of life, liberty, or property without due process of law? The Court rules that the final provision of the second Militia Act of 1792 is Constitutional and consistent with due process of law, subjects pre-existing militia stores, including ammunition, to the authority of the President who called the militia into action by proclamation. Has the government taken “private property” for public use without compensation? The Court rules that “private property” only includes real property (land).

Finally the Court addresses the right to control your own property. The Court recognizes the ancient right under common law, and notes that the 4th Amendment offers protection from unreasonable seizure. But this case does not count as unreasonable seizure and the 4th Amendment is held inoperable. The Court notes that Congress had submitted, and the States (including Virginia) had approved a number of Constitutional amendments which lay out a bill of rights. Therefore, the Court reasons, all rights not mentioned are forfeited: though formerly there may have been a right to control one’s personal property, the States by approving the bill of rights consented to the destruction of any unenumerated right. Such is the case with Virginia’s own bill of rights, which is presumed to be exhaustive; with New York’s bill of rights; with Massachusset’s bill of rights; etcetera. This principle was recognized by James Wilson, the Federal Farmer, George Mason, Patrick Henry, William Grayson, James Madison, and John Jay. Even Governor Randolph, when he spoke before the Virginia ratifying convention on June 17, 1788, acknowledged this most basic principle of construction. When a bill of rights is laid out, all rights not enumerated are forfeited. (cites in “Authorities” spoiler) Thus, the Court rules, the right to control your own property was forfeited on December 17, 1791 when the bill of rights was added to our Constitution.

The Ninth Amendment prevents such construction, but it does nothing else.

~Max