Firearms and the Ninth Amendment

I subscribe to the website Quora which emails lists of editorials ranging from the environment to science to war. I usually find something that piques my interest.

What caught my eye this week is the large number of Op-Eds that concern gun violence and the Constitution. More specifically, a column by Keith Shannon, Texas LTC (Licensed to Carry), titled, “Why is gun control not a violation of the ninth amendment?”

For those not familiar with the Ninth Amendment, it reads:

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

Shannon also refers to the Tenth Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

According to a lecture found on the Khan Academy website, the Ninth and Tenth amendments “address the broader issues of constitutional interpretation.”

In simple terms, just because the Constitution does not address certain rights does not mean they do not exist. It would be up to the people and the states to define those rights. These are rights that are accepted state-to-state, fundamental, and considered basic rights since the founding of this nation.

As we enter into the new session of the Supreme Court, there are two cases that will be considered concerning the right to bear arms. The Court has not addressed the issue of the Second Amendment’s scope since the 2008 case of District of Columbia v. Heller and the 2010 case of McDonald v. the City of Chicago. Both cases found that the state or city does not have the right to deny the ownership of firearms carte blanche.

One of the cases, New York State Rifle & Pistol Association v. The City of New York, may be considered moot because the state of New York changed its laws allowing premises-license holders to be able to transport their handguns to any place outside the city for hunting or target practice.

The second case is Remington Arms Co. v. Soto. Remington also manufactures the Bushmaster XM15 semi-automatic rifle, which was used in the Sandy Hook massacre in 2012. Soto is seeking to sue Remington and Bushmaster Firearms International to be held partly responsible for the murder of 24, including 20 children. This case challenges the Protection of Lawful Commerce Act of 2005 in which Congress specifically protect the manufacturer of firearms from the actions of a third party.

The problem with all of the interpretations of the Constitution and decisions by the courts, the underlying causes of the prolific use of firearms to solve basic problems is not being addressed.

Politicians blame mental health, video games, and the availability of firearms in our great nation. But there is something overlying those excuses. Something that needs to be studied in terms of the epidemic of 40,000 annual firearms-related deaths.

We know that laws limiting the ownership of certain firearms are considered constitutional. Fully automatic firearms,  short-barreled rifles, and shotguns ownership can be severely limited under the National Firearms Act (NFA) of 1934.

The 1986 Firearm Owners Protection Act reinforced the prohibition of owning fully automatic weapons. In 1993 came the passage of the Brady Handgun Violence Prevention Act. Retired chief justice Warren E. Burger wrote:

“’Saturday night specials’ and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.”

The Federal Assault Weapons Ban of 1994 defined and banned the manufacture and transfer of “semiautomatic assault weapons” and “large capacity ammunition feeding devices.” When the law expired in 2004, military-style semi-automatic rifles were once again allowed to be manufactured and owned.

I have held for years that the arguments concerning the Second Amendment center on the nonstandard English language of 1789 and the placement of a comma. I am not sure how Shannon (you remember Keith Shannon, LTC) addresses the issue of the Ninth Amendment. He really does not go into detail.

With our conservative-leaning Court, it is quite feasible that Remington Arms Co. v. Soto will be heard and that the federal law will take precedence. On the other hand, the case of the New York State Rifle & Pistol Association should be dismissed without comment, for New York has already remedied the situation.

The use of the Ninth Amendment is unique to Shannon’s argument. Just because there is a “tradition” of something, like gun ownership, does not make it an unalienable Right. In Remington, we must also consider our right to “Life, Liberty and the Pursuit of Happiness.”

About David Rosman

David is the winner of the Missouri Press Foundation's "Best Columnist" in 2013 (First Place) and 2014 (Second Place), the 2016 Harold Riback Award for excellence in writing, and the winner of the 2007 Interactive Media Award for excellence in editing.
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