OK, I may have spoken somewhat too broadly. I tend to think the impact of Heller is not yet clear, partly because the decision also appears to contemplate permitting a wide range of restrictions upon guns, short of banning ownership.
I tend to think that a law stating that one can own a gun, train with it, and hunt with it, but any use of that gun against a human being is prohibited, even if in self-defense, would be constitutional. But you’re right; Heller may ultimately mean that I’m wrong.
Wouldn’t both the right to privacy and the right to self-defense be covered by the 9th Amendment?
You know, at first I wanted to simply write-off your question, but then I decided to look at the constitution, and you’re right: there is no right to self defense clearly articulated. In my perusing, I also discovered, much to my utter amazement, that the constitution also lacks any language laying out my right to: keep breathing; chew when there is food in my mouth; yawn; stretch while I yawn; put my hands out in front of me if I fall; take a piss; walk to work; drive to work; eat an apple with the skin on; read in low light, wrap birthday presents; sleep on my side…man, none of that stuff is in there! :mad:
And I thought we had rights! :mad::mad:
Because the establishment clause requires the separation of church and state. Some people try to get around this by masquerading their religious beliefs as something else.
I’m not seeing the link between religion and the guntoting right to self defense.
The Ninth is intended to ensure that we do not disparage rights that are not enumerated in the Constitution. It is not a source of rights in itself.
The Ninth says that there can be rights other than those enumerated in the Constitution, and the Tenth goes on to state where the power exists to enumerate or otherwise establish rights.
Regards,
Shodan
We’ve done this before. You were wrong then, you’re wrong now, and you will be wrong every time in the future when you simply repeat the same thing over and over.
If anyone is interested, it’s been dealt with Here, Here, and Here
In what way is Shodan wrong? I tend to agree.
He’s saying there is a linkage between the Ninth Amendment and the Tenth Amendment. I believe what he’s arguing is that the combined effect of these two amendments is that the states and the people have the power to establish other rights but the federal government is limited to what is explicitly stated in the Constitution.
I disagree with this argument. I feel the Ninth Amendment is independent of the Tenth (they were not originally written together). The Ninth Amendment states that there are unenumerated rights within the Constitution and therefore the federal government has the power to establish rights that apply to all Americans.
Your second clause is specifically contradicted by the Tenth - because the Constitution does not explicitly assign the power to enumerate rights to the federal government, therefore that power belongs only to the states, or the people.
The Ninth and Tenth are not independent in the sense that they contradict each other - that makes no sense.
There is nothing in the Ninth Amendment that states the Supreme Court has the power to establish rights, nor does it follow logically from the assertion that there are unenumerated rights.
Regards,
Shodan
If the tenth amendment in some way contradicts the ninth then the tenth would have repealed the ninth. Of course these amendments were passed and ratified simultaneously, which means they must have some difference in their operation. Yes they are independent to the extent that a question could arise under one but not the other.
Are they meant to work together in explaining where the power to determine a right resides? In general, yes, I think so.
I am not a subscriber to the idea that the supreme court can invent a right. But they can recognize rights under the ninth that haven’t been recognized before.
For instance, let’s suppose that no-one has recognized a right to self-defense before in the US. I get convicted of murdering someone in self-defense, because the court claims I have no right to self defense. So I take it all the way up to the supreme court and I argue: “The trial court is mistaken in claiming I have no right to self-defense when it argued it is not listed in the bill of rights. The right to self-defense existed in the common law. The ninth amendment guarantees that rights other than those spelled out do exist. Therefore, the ninth amendment protects my right to self defense, the trial court was wrong, and it must be reversed and a new trial ordered wherein I can assert my right to self defense and present evidence to support that defense.”
Now, let’s say the supreme court agrees. Some would get all huffy and say the supreme court has “created a right.” But they didn’t; they merely recognized a right.
Not to say that they do not create rights; upon occasion, they do.
Agreed.
You would be correct in your scenario as long as the right to self-defense existed in the common law. Then a right to self-defense would have been established by “the states, or the people”.
But not by the Ninth Amendment.
Regards,
Shodan
I’m not sure I see a difference. The Supreme Court doesn’t “invent” rights; it protects them from governmental intrusion. And it does that only for rights that have generally been recognized. There are different tests the Supreme Court has used to determine what rights they will recognize as protected by the Constitution, but generally speaking it’s rights that have long been recognized as fundamental. That’s part of the reason that Scalia spent time in his opinion in Heller discussing the fundamental nature of the right to self defense.
And they ruled that right was protected by the Constitution. Despite the fact there are no words in the Constitution saying “the right of self-defense shall not be infringed”, the Court would have found that right was protected. Which should, to my mind, cause much distress among those who constantly cry “But that’s not in the Constitution”. I think that was kinda the point of the OP, that the same people who shout “There’s no right to privacy in the text of the Constitution!!” should be shouting “There’s no right to self defense in the text of the Constitution!!” But they don’t.
My only complaint about a right to provacy is carving it out of the fourth, never looking to a right to security in fourth amendment issues. Then they apply this right of privacy in non-fourth amendment context. I got no problem with privacy found in the ninth or tenth amendment.
Because Scalia was doing what he always complains about liberal jurists doing: making things up.
Neither Heller nor the amici argued that there was a right to self defense; Scalia came up with that independently. The Supreme Court is theoretically limited to considering the merits of arguments presented by the parties, but hey, he convinced a majority.
Cite, insofar that the court may not sua sponte use an independent analysis of those of the parties. I think you mean they can’t raise issues neither party raised.
Now, if you and I appear in front of the Supreme Court, and say I argue that there’s a right to self defense because the little man in my head who keeps me awake at night said so, and you in turn argue that there is no right of self-defense because the little man in your head said so, are you really gonna argue that the supreme court’s reasoning is limited to a discussion of the little men who live in our heads? Or can they ignore both and instead talk about the real reasons there is or isn’t such a right?
That’s not what happened here. Heller argued that the 2A protected a right to keep and bear arms, and that the first half of 2A was simply a prefatory clause*. They didn’t say anything at all about self-defense, other than discussing the founders’ views on it. The link goes to Heller’s original appellate brief, not the SCOTUS brief, incidentally, but the arguments are essentially the same.
Here is the summary of the argument:
The issue was whether or not handguns could be banned. The court is free to use the reasoning that guns can’t be banned because of this right to self-defense in deciding the issue.
If neither party raised a fourth amendment issue to the evidence of the gun, the court, for instance, couldn’t sua sponte raise the 4th amendment issue in the case.
But on issues squarely before the court, they can pretty much reason any dang way they want.
**For you Constitutional Originalists - where is the Right to Self Defense? **
That works for me. It is not beneficial to the General Welfare of the citizenry for them to not be able to defend themselves against an attack.
The section you quoted doesn’t say anything about the right of citizens to defend themselves - it says that Congress has the power to tax. Certainly Congress can use tax money to defend the country, but that is not the same as saying citizens have a right to self-defense.
Congress has the right to issue money, too, but citizens do not. Same thing here.
Regards,
Shodan