[quote]
Shodan: The Constitution does not mention either “abortion” or “privacy”. Therefore, the right to have an abortion is not covered in the Constitution. Since it is not, it should be addressed by the individual states, or by the people. Under the Tenth Amendment, therefore, the Court had no right to overrule the abortion laws of the several states.{/b]
From the Roe v Wade Decision:
Tsk. Such coding.
Your line of reasoning is one of the arguments that was made way back against putting a Bill of Rights in the Constitution, because of the fear that someone would use the precise argument you’re using: that if the right isn’t enumerated it doesn’t exist.
This is utter nonsense, and the exact opposite of what the Ninth says. No one is reading any new rights into anything. The Ninth was put there as a direct refutation of that wacky idea.
The 9th cuts both ways. For example, by what authority does the federal government prevent me from growing certain plants in my garden? Sure, the right to plant is not in the Constitution, but neither is the power to regulate planting on private property granted to the federal government.
Here we go again. The Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights.
Even libbies with law degrees like minty green understand this.
We’ve discussed this point many times. Among other places, it’s buried in these threads:
Rights? What’s a Right?
Is Scalia Nuts?
Supreme Court hears challenge to Texas Sodomy Ban
Conservative dopers vs. gay sex decision
Democrats oppose Hispanic judge: “he’s too competent!”
Strict constructionists: How about adding a constitutional “right to privacy”
A moment of your time, please, Justice Scalia
And not a 9th thread, but just for fun: Dewey! Minty! Come a runnin’!!
Without getting into the ongoing argument with Dewey pn the significance of the Ninth Amendment that we will probably never come to agreement on, I think that his view and mine can be accommodated by the following:
Do rights other than those specified explicitly in the Constitution exist? The answer, of course, is yes. Hw are they protected? By the power of law recognizing and protectiong them.
Dewey’s reading would restrict this to statute law passed by Congress under an affirmative grant of power in the Constitution, and by State constitutions and statue laws. My own would add to that decisions of the courts inferring rights from the meaning of the Constitutional specifcations.
For example, Mr. Justice Kennedy’s definition of “the right to autonomy in personal relationships” as outlined in Lawrence and Garner v. Texas can be inferred from four Constitutional provisions, taken together: The First Amendment “right” to freedom of association (itself an inference from the freedom to assemble and to petition for redress of grievances specified there); the Fourth Amendment right to security in person and dwelling from unlawful searches and seizures; the Ninth Amendment specifciation that the enumeration of rights shall not be construed to disparage the existence of other rights; and the Fourteenth Amendment protection of the “privileges and immunities” of U.S. citizens from state intrusion, coupled with the “due process” clause that has so exercised our discussions.
That right has always existed as a part ofthe American heritage of freedom – but it took until this year to have a case in which it required specific definition. Without it, the only occasions on which you have any choice as to whom you will associate with are when you are engaged in public worship, assembling to petition the government for redress of grievances, and perhaps choosing an attorney to represent you in a legal case.
Very few Americans would have ever suggested that you do not have the right to marry, under the specifications laid down by the state (only one person, of opposite sex, that person and yourself being at present unmarried, and both past the age of consent) – but that right is nowhere specfied, and it took until 1967 for a case to aries when it needed spelling out that that right does exist.
Ugh. I am not going to reargue this. Suffice it to say that much of what Polycarp writes is of his own imagining; see the threads I linked to above for details.
One thing I’d like to clarify, though: Kennedy never infers that the ninth amendment, or indeed any amendment outside of the due process clause, is the basis for the court’s decision in Lawrence v. Texas. Indeed, Kennedy never mentions the ninth amendment at all, nor does he rely on a conflation of several amendments. That device is wholly Polycarp’s invention. It is not part of the decision in question.
As a guide to the principles behind the more-specific parts of the Constitution, yes, of course it applies. The sources are elsewhere. It’s a hierarchy: The Preamble states the reasons for the Constitution’s existence, on the next level down the text and amendments define the overall structure of the political and legal system it sets up, down from there legislation fills in operational detail, and on the next level the executive branch fills in details not defined in legislation. Each level is a “source” to guide the lower levels. What’s your problem with that?
Re the rest of this grammarian’s attempt to read the Second Amendment as you wish it to mean, please review the Miller decision. The Supremes ruled that yes, the first half of the sentence does indeed guide interpretation of the second half, which is what I’ve been trying to help you see. Gee whillikers, why would they do something that obviously wrong, huh? The law of the land is what I have told you is the common-sense, meaning-based interpretation, not yours. You disagree with it philosophically? Well, that’s just too damn bad, ain’t it? To claim otherwise is, as I’ve told you, argumentative.
Because that’s what it says. When you read the whole thing, that is.
What, you want more? The other rights in the Bill are by nature individual. Common defense (see the Preamble) is by nature a collective need. A militia does have to be well-regulated, not an aggregation of rights-holding individuals. Knowing that there would be people attempting to insist otherwise, the Convention went out of their way to explain that. That’s simple English grammar, common sense, and the settled law of the land too. Why, as the OP title says, do you have such a low opinion of it?
Dewey, Polycarp, et alia, re the Ninth: I had no idea I’d stepped into the middle of such a big fight on these boards. Looks like I’ve got a crapload of reading to do.
Elvis: I disagree. If you read the cite from the Federalist that I posted, I think it’s pretty clear that it confers an individual right, and the thinking was that the well-regulated militia was going to be drawn from the general populace, and it was expected that the general populace would also be armed. There’s a ton of writing about the relationship between the militia, the army, and the people in The Federalist, and all of it pretty clearly points to this idea. The way to read the Second is the way pervert says, IMO, regardless of the fact that he/she and I would probably disagree about the details of gun control. For it to be read in a different way would imply that some huge change in the political thinking of the people took place in the short space of years between the ratification of the Constitution and the ratification of the Bill of Rights. I don’t see how that’s possible.
Besides, The Master agrees with pervert’s interpretation, while simultaneously holding that reasonable restrictions on gun ownership are also valid:
And there’s this, which matches exactly the conclusions I’ve drawn as to their intent:
link: http://www.straightdope.com/classics/a5_123.html
Getting further into this would just mean yet another gun-control thread, and I quite frankly haven’t read one of those in a couple of years. (or at least it feels that way, anyway.)
Well, my own hypothecating. Do you have a problem with the first two sentences, which were an attempt to define common ground regardin the Ninth? Beyond that was my own discussion of the issues, which I’d intended be clearly defined by the distinction between your position and mine, but I guess was not clearly distinguished as my own opinion.
Correct. I hope I didn’t give people cause to believe I was outlining Kennedy’s views. One thing Dewey and I do agree on is that substantive due process is a rather limitless means to read your own views into the Constitution. What I was trying to do is to substantiate the autonomy concept by means of inference from defined rights.
As for the Second, I agree with Dewey – and Cecil.
Shodan, I suspect you’ll find very few cases specifically referencing the Tenth, for the very good reason that courts will generally examine the specific grant of power alleged in the preambulary material of a statute to ascertain if the Congressional presumption of power is indeed valid. Nonetheless, there are quite a number of cases in which Congress was held to be acting ultra vires that remain good law. This is for the excellent reason that the Tenth in itself does not limit Federal power; it simply defines that any power not delegated to the Federal government is reserved to the states or the people. Accordingly, the Tenth Amendment does not stop the Federal government from doing something that another clause of the Constitution can be construed to permit it to do; it simply says that in the absence of affirmative granting of power to the Feds., the powers are retained by the states, and if prohibited the states by the Federal or state constitution, are retained by the people. E.g., the power to pass an ex post facto law clearly exists; English kings did it prior to the Revolution. But the sovereign people decided that neither the Federal government nor the states could exercise such a power – and it is retained by the people in consequence. (Note that the Tenth does not concern itself with rights but with powers.)
pantom, I’m not sure what we’re disagreeing about. The interpretation ruled on by the SC in Miller, and the one explained by The Master, do in fact take the intent of the amendment as stated in its own text into account, which is what I’ve been saying is reasonable. Only Dewey and the cold-dead-fingers gun ideologues insist that the first half of the sentence has no practical meaning that must be respected. But I like your implication: If they don’t like it, they can take it up with Cecil.
Keep dancing. I asked you whether you think the Preamble was a source of substantive law, e.g., can a law be struck down on the basis of violating the Preamble? **
Be careful what you cite to: Miller infers an individual, not communal right to bear arms: it simply says that whatever weapon the individual has the right to bear must be suitable for militia use. Miller found out to his chagrin that a sawed-off shotgun was not such a weapon. Nothing in the decision suggests that the government can prevent the individual from keeping and bearing arms suitable for combat operations.
Miller is probably bad law; taken to its logical conclusion, it means the federal government can ban private ownership of revolvers, but not fully-automatic M-16s. **
So next time you start bitching about Bush v. Gore, I can expect you to shut up when I remind you that, being that the Supreme Court decided it, that is what the law of the land is, and if you don’t like it then that’s just too damn bad?
Sorry, I don’t accept the view that the Supreme Court has a monopoly on capital-T Truth. They are human. They do get things wrong from time to time. And while as a practical matter, their decress are “the law,” that does not mean that I have to accept that their decisions necessarily foreclose all debate on the propriety of a particular mode of constitutional interpretation. **
You seem to be deluded into thinking that the militia, as understood by the Framers, is something other than an “aggregation of rights-holding individuals.” That’s what they are: able-bodied members of society, called from their private lives in times of need, carrying their own weapons in defense of their homes.
You also have the rather serious problem of the second amendment’s couching of the right to bear arms in terms of individuals – “the people” – rather than as a collective political body. If the framers were principally interested in the state’s right to collective security, why not simply phrase the amendment accordingly? Why not “the right of the states to maintain and regulate militias will not be infringed”?
N.B.: None of this prevents “regulation” of the competence sort. A state has a legitimate interest in ensuring that the arms-bearing individuals in its midst are both responsible and competent. I actually agree with Unca Cecil that certain types of gun control are perfectly permissible – background checks and the like are fine by me, so long as they are performed with dispatch and with due regard to privacy concerns. It’s the rules that deprive honest citizens who are willing to demonstrate their competence of the right to own particular weapons that disturbs me.
adaher and pantom -
We were talking about the Tenth Amendment, not the Ninth.
I think the problem arose when ElvisL1ves responded to my post with:
He too is confusing the Ninth and Tenth Amendments.
I haven’t had a chance to read carefully what Dewey Cheatum and Howe has to say on the subject. I will try to post again when I have done so. Happy New Year if I don’t get a chance.
Regards,
Shodan
Fer chrissakes, yes, even if it hasn’t happened to be necessary yet. I had thought that was clear. The only one dancing away from the document itself is you, pal.
Nor did anyone, including me, say it did, as I have tried to explain to you already without your noticing. The Second Amendment, taken as read in its entirety, does indeed provide that protection under those circumstances.
Yawn. The Supreme Court has so ruled. It is the settled law of the land, as are all rulings made by humans. But perhaps you’re now getting to an answer to the thread title, of why you have such a low opinion of the Constitution - that it was made and is interpreted by humans, not by some evolved superintelligence such as yours. Is that really it?
Fer chrissakes again, what does “well-regulated” mean to you?
That each member of a military unit can do whatever he damn well pleases as an individual? Nobody, including the writers, could ever seriously have meant that - unless when being argumentative, as you are doing.
Happy New Year, my good fellow, and good luck in your legal career.
Shodan, you may be right about the amendment number in question, but frankly you need to advance an argument if you want a reply. Happy New Year to you too.
I’m glad I have you on record as saying that the Preamble represents enforceable law, capable of overturning legislative acts in the absence of other on-point constitutional provisions. Because such a position clearly relegates you to the lunatic fringe.
Let’s be clear: no serious legal scholar, jurist or historian, from the strictest strict constructionist to the loosey-goosiest of living constitutionalists, suggests that the Preamble represents enforceable, substantive law. That includes leading liberal constitutional scholars like Laurence Tribe and Ronald Dworkin. It includes liberal jurists from Brennan to Ginsburg.
You are inhabiting legal la-la land.
To most people, this is reasonably clear: the phrasing, structure and location of the Preamble clearly indicate that it (like the prefatory clause of the second amendment) is to be exhortative, not substantive. For most folks, this is simply a matter of basic reading comprehension. And there are no extratextual sources that indicate anything contrary to that straightforward interpretation. Your position is wholly untenable, the triumph of hope over reason. **
So you believe, per Miller, that there is a constitutional right for individual ownership of fully automatic combat rifles? **
Yawn, nothing. It is highly unlikely that Miller is good law, for the simple reason that any modern court is highly unlikely to consider the distinction the Miller court drew to be valid. It is highly unlikely that a modern court would consider the second amendment to protect an individual right to private ownership of military-grade weapons, but not an individual right to less powerful weapons. I seriously doubt that Miller would be deemed a controlling precedent (or even an important precedent) should the Supreme Court consider whether the second amendment confers an individual or communal right.
Not every Supreme Court case is of equal importance. Some are oddballs that simply aren’t accorded much respect, and are rarely (if ever) as controlling precedent in later cases. Miller is such a case.
Even so, I’m surprised you seem so fond of Miller: it clearly countenances the individual-rights theory of the second amendment. Even your own cite doesn’t support the communal-rights theory. **
This statement is simply bizzare. Doubly so, given that strict constructionism flows from respect for the democratic processes that gave us the Constitution – the recognition that is not a quasi-religious text handed down from on high, but rather the agreement of fallible men, nothing more, nothing less. Strict constructionists believe that it is wrong to inhbit the right of people to determine what kind of government they will have outside of obstacles the people themselves have previously agreed upon. That’s why strict constructionists demand fealty to the text and original understandings, rather than the wishes and whims of the jurist hearing the case. **
The militia is composed of rights-holding individuals. Just because they have to follow orders when engaged in militia service does not change that fact. The second amendment ascribes a right to “the people,” not to “militia members during times of militia service.” It is an individual right, not a communal right.