Gun Rights Lesson #900 – Gun Rights, Self Defense, and the Ninth Amendment

EDITOR’S NOTE: This is one of a series of articles on gun rights.

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Advocacy for gun rights typically involves invoking the Constitution’s Second Amendment, which reads:

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.

The essence of 2A is that a populace that is armed is best able to resist tyranny, both foreign (other nations) and domestic (our own government run amok). Thus, the explanatory clause that precedes the plain statement regarding the “right of the people.” Opponents often attempt to misrepresent the Militia part as a restrictive clause, and thus justify restrictions and prohibitions against civilian ownership, but all that is risible, because the entirety of the Bill of Rights restricts the government and protects individuals. I address this further in Gun Rights Lesson #404.

Practically speaking, 2A, properly read, provides sufficient protection for individual’s gun rights. However, the fact that there is an explanatory clause, where none exists in any other Bill of Rights amendment, is of philosophical interest.

Consider that there was active debate as to whether a Bill of Rights should be included at all in the Constitution. Some felt that the listing of rights would be seen/misconstrued as either a granting of rights by the Government instead of a recognition/protection, or a de facto exclusion of other rights due to the enumeration of a limited list.

The first concern is evident even among some who defend gun rights. Assertions that 2A grants us gun rights run contrary to the Declaration’s “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Our rights exist apart from the Government, and the Constitution simply establishes protections for those rights.

The second concern was addressed by the inclusion of the Ninth Amendment, which reads:

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

I posit that it is in the Ninth Amendment that we find additional broad protection for gun rights.

Begin with the basic meaning of individual liberty. If I am to be a free person, if I am to “own myself,” that carries implications. I should be able to move about freely, provided I don’t transgress another’s rights (personal or property). I should be able to engage in voluntary interactions with others. And, I should be able to defend myself against the liberty-violating aggressions of others.

2A makes no mention of self-defense (or of hunting, or of target shooting, or of any other reasons one might want to own a gun). As I noted, nowhere else in the Bill of Rights is there an explanatory clause. Thus, one might reasonably infer that 2A is intended to provide specific protection for arms ownership as a bulwark against government tyranny.

There are myriad rights that aren’t enumerated in the Bill of Rights, including the aforementioned freedom to move about, freedom of association, economic liberty, freedom to contract, and so forth, born out of the basic notion of inalienable (meaning they can neither be taken nor given away) rights to life, liberty and the pursuit of happiness. Right to life, especially, must include the right to defend that life, and there are no restrictions on the means of defending that life codified anywhere in the Constitution. Thus, if someone attacks me, I can use my fists, a stick, a knife, a bottle, a rock, or, yes, a gun, to defend myself against that attack. There are elements of proportionality, rooted in the violation or potential violation of third-parties’ rights (e.g. I don’t get to use a nuclear bomb on my attacker, because I’d be highly likely to endanger or violate the rights of bystanders). That aside, as a matter of principle, my right to defend myself with a gun is protected by 9A.

Would it be nice if the Framers wrote 2A in such a way that precluded any debate today? Sure, but some things were considered so obvious at the time that the need to spell out specific protections didn’t seem necessary. The Revolution started with attempts at a gun grab by the government, so it seems quite natural that the new government would include specific protections against this happening again. Similarly, one of the big complaints about the British government was the use of general warrants, which were carte blanche for searching people and their homes, and so we have a 4th Amendment, and the British government used to quarter soldiers in people’s homes against their will, and so we have a 3rd Amendment. We can find similar born-of-circumstances history for each of the enumerations in the Bill of Rights. Things like free travel, freedom of association, freedom of contract, etc were so natural and obvious that they didn’t appear to need special protections. So would self-defense. I don’t need the government to tell me that I’ve the right to defend myself, and thus the government cannot debar me the tools that enable me to do so. And, in fact, for a substantial portion of this nation’s history, gun ownership, for self defense (against both nature’s and human dangers), and for actually putting food on the table for that matter, was as natural as breathing. I expect the idea that people would be debarred the use of arms for self-defense today would seem completely alien to the drafters of the Bill of Rights. Indeed, a survey of the Founding Fathers’ quotes on gun ownership shows a great deal more attention to the state tyranny consideration.

Some worry that anti-gun activists desire the repeal of 2A. Even were that to come to pass, I’d argue that 9A continues to protect our gun rights. This is a philosophical argument, obviously, since a 2A repeal would widely be seen as a repudiation of those rights, an excuse for the government to come knocking, and, I’m sad to suggest, a possible spark for a confrontational breakdown of the Republic (as such, it would mirror the original Revolution). As I noted earlier, for practical purposes, 2A, even with its explanatory clause, is sufficient to defend our gun rights. In understanding the essence of our rights, however, we see a broader picture come into focus, and perhaps ponder a possible reason as to why there is an explanatory clause in 2A in the first place.

In sum, I see as great a protection of the right to bear arms in the Ninth Amendment as I do in the Second Amendment. It is only those who have no respect for liberty that would deprive others of the tools by which they may defend themselves and their families.