Making Sense of the Ninth Amendment
and the Montana Firearms Freedom Act Interplay
by Gary Marbut, © 2010
Ninth Amendment to the U.S. Constitution: "The enumeration in the
Constitution of certain rights shall not be construed to deny or
disparage others retained by the people."
The Montana Firearms Freedom Act (MFFA) declares that any firearms,
ammunition and firearms accessories made, sold and retained in Montana
are beyond the authority of the federal government to regulate or
prohibit under the power allowed in the U.S. Constitution to regulate
commerce "among the states."
To demonstrate the import of the Ninth Amendment in application to the MFFA, some terms and conditions must be understood.
If the reader believes that the Constitution is an old, dead, obsolete
and meaningless piece of paper, the Ninth Amendment is as worthless as
the rest, and has no relevance to the MFFA. However, if the
observer believes that the Constitution actually means something, and
that those who ratified the Constitution and its amendments had
authority to do so, that they understood meaningful terms precisely as
used and applied in their time, and that they knew what they were
doing, then import of the Ninth Amendment begins to come into focus.
A comment about constitutional "interpretation" and "construction" is
in order. What the Constitution says is one thing. Whether
we approve of what it says is a different question. Rather than
attempt play with the Ouiji Board of what the framers intended, we only
need to look at how the plain language drafted by the framers was
understood by those who actually adopted the Constitution, the people
through the ratifying conventions of the states.
Still, understanding and crediting Ninth Amendment application requires
some further steps of discussion, logic and understanding.
It is central to our western system of political thought that the
individual is sovereign. By that it is meant that all existing
political power resides in individual people, but not that the
individual has any legitimate power over others. There are no
kings under this system, or princes who have some measure of political
power to be applied within a political system, only individuals.
Individuals voluntarily surrender some portion of their political power
to the community of their state in order to empower the state to do
some selected things for them in common that they cannot do well or
effectively as individuals. The political state of individuals,
in turn, surrenders a specific portion of its collected political power
to the United States under our federated system, and for the same
However, it is important to note two significant points. First,
this grant of power from sovereign individuals to state, and
secondarily from state to national, is a limited transfer of
power. Under this system, people do not sell themselves into
slavery to unlimited governments, nor do they fail to delineate limits
to this grant of political power to governments. Second, this
grant of power from individuals to government is for very specific
purposes. Just what are these purposes?
"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of
Happiness.--That to secure these rights, Governments are instituted
among Men, deriving their just powers from the consent of the governed
…" Declaration of Independence
So we see that "Governments are instituted among men" "to secure"
"Life, Liberty and the pursuit of Happiness" (and property, some
Founders argued). These are the declared purposes of governments
generally in our Nation, especially the national government.
"… in order to form a more perfect union, establish justice, insure
domestic tranquility, provide for the common defence, promote the
general welfare, and secure the blessing of liberty to ourselves and
our posterity, …" Preamble, U.S. Constitution
These, then, are the specified purposes of the federal government
created by the states through the charter, the empowering document
known as the U.S. Constitution. Of these several delineated
purposes, the most significant to this discussion is to "secure the
blessing of liberty to ourselves and our posterity …"
It is important in this context to grasp that although the people and
states gave a limited ("enumerated") grant of power to the federated
national government, there are two important aspects to what was NOT
included in that grant. One limitation was that associated with
the nature of the limited franchise - that only carefully specified
powers were granted to the central government and no others.
Another limitation was in the form of overt restrictions on the powers
of the central government. These, of course, are contained in the
Bill of Rights, adopted subsequent to the underlying Constitution.
The adoption of the Bill of Rights
subsequent to the Constitution is stressed here because it is likely that those amendments were not
mere additions to the Constitution, but that they actually had
amendatory effect over the body of law into which they were amended -
that the amendments have some actual effect upon the underlying
document and its terms and provisions, an issue to be discussed later.
Let us grant for the sake of this discussion that the people from whom
any power in the Constitution arose were sovereign, not that they had
power to command others, but that they owned themselves and had full
power to make all choices as regards themselves. They could
commit at least themselves, if not their posterity. Let us grant
also that the process through which the Constitution and the federated
government were created was a valid process, done with acceptable
authority by those persons and entities involved.
Having clarified these several presumptions, what else is essential to understanding the Ninth Amendment and its effects?
The Ninth Amendment cannot be understood without discussion of natural rights.
Those who crafted our system of a federated national government
believed that all persons were "endowed by their Creator with certain
unalienable Rights …" These rights arise out of personhood,
simply existing as a human being, and are generally referred to as
"17th-century English, philosopher
John Locke discussed natural rights in his work, identifying them as
being 'life, liberty, and estate (property)', and argued that such
fundamental rights could not be surrendered in the social contract.
These ideas were claimed as justification for the rebellion of the
American colonies. As George Mason stated in his draft for the Virginia
Declaration of Rights, 'all men are born equally free,' and hold
'certain inherent natural rights, of which they cannot, by any compact,
deprive or divest their posterity.' "
Black's Law Dictionary, 5th Edition, offers one definition of "Right"
as: "Rights are defined generally as 'powers of free
action.' And the primal rights pertaining to men are enjoyed by
human beings purely as such, being grounded in personality, and
existing antecedently to their recognition by positive law."
Black's defines "Natural rights" as: "Those which grow out of nature of
man and depend upon his personality and are distinguished from those
which are created by positive laws enacted by a duly constituted
government to create an orderly civilized society."
Thus, natural rights are those "powers of free action" that exist prior
to the reservations of rights by people when they engender government
with their constitutions, and that exist as a part of the "nature of
The Ninth Amendment. What does it include?
The Ninth Amendment declares: "The enumeration in the
Constitution of certain rights shall not be construed to deny or
disparage others retained by the people."
There is little debate about the presumption that the rights of
individuals enumerated in the Constitution were placed there
specifically to secure those individual rights beyond the reach of
interference by the federal government created by the Constitution.
What rights were specifically enumerated in the Constitution?
Certainly mentioned by name were freedom of religion, freedom of
speech, press and assembly, the right to bear arms, freedom from
unreasonable search and seizure, freedom from cruel and unusual
punishment, and many more.
However, some of those most interested in instituting a federal
government "to secure these rights" understood that it would be
impossible to provide an exhaustive catalog of rights inherent in
people as a part of their humanity, "natural rights" or "liberty
rights." Those natural rights are the ones "retained by the
people" because they are "certain unalienable Rights" that may not be
taken away or even surrendered.
Some of the Founders argued 1) enumeration of specific rights in the
Bill of Rights was unnecessary because the constitutionally-created
federal government was simply not authorized in the underlying
Constitution to impair those rights, or 2) that any list of such rights
restricted from government interference could never be sufficiently
exhaustive, which might leave some unnamed rights subject to government
[I]t would not only be useless,
but dangerous, to enumerate a number of rights which are not intended
to be given up; because it would be implying, in the strongest manner,
that every right not included in the exception might be impaired by the
government without usurpation; and it would be impossible to enumerate
every one. Let any one make what collection or enumeration of
rights he pleases, I will immediately mention twenty or thirty more
rights not contained in it. (Elliott, Debates, 167, James
Iredell, North Carolina ratifying convention, Tuesday, July 29, 1788.)
In all societies, there are many
powers and rights, which cannot be particularly enumerated. A
bill of rights annexed to a constitution is an enumeration of the
powers reserved. If we attempt an enumeration, everything that is
not enumerated is presumed to be given. The consequence is, that
an imperfect enumeration would throw all implied power into the scale
of government; and the rights of the people would be rendered
incomplete. (Merrill Jensen, The Documentary History of the
Ratification of the Constitution, Vol. 2 (Stevens Point, Wis.: Worzalla
Publishing. 1976), 388 (statement of James Wilson to the Pennsylvania
ratifying convention, November 28, 1787).)
In response to the second argument and quotes above, the Ninth and
Tenth Amendments were added to protect all rights not listed in the
first eight amendments.
What natural rights were not specifically mentioned and thereby
protected by constitutional amendments contained in the first eight
amendments in the Bill of Rights?
Examples are the right to privacy, the right to self-defense, the right
of freedom of conscience, and the right to choose in one's own affairs,
all considered to be important individual rights but none mentioned
under the list of protected rights in the Bill of Rights.
Certainly the right to self-defense is strongly implied by the right to
keep and bear arms, even though the right to self-defense is not
specifically mentioned in the Bill of Rights.
In fact, there may be no greater biological imperative than
self-defense. Of what value are any or all of the other protected
rights if a person may not defend the person from threat to life or
limb? How could a newspaperman exercise his freedom of the press
if he could be killed with impunity? How could any person
effectively exercise his freedom of speech if he could be summarily
killed because he exercised that freedom?
Perhaps the Founders thought self-defense was entirely too obvious to need mention in the Bill of Rights.
Nevertheless, self-defense is axiomatically a natural right, a right
inherent in being a human being, and also obviously one important
reason for including protection of the right to keep and bear arms in
the Bill of Rights.
Self-defense is exactly the sort of right protected from government
interference by the Ninth Amendment, clearly a natural right and one
not enumerated in the first eight amendments of the Bill of Rights.
However, it is far, far from the only right so protected. See the
comment of James Iredell above. Concerning an exchange that
occurred during the debate in the House of Representatives over the
wording of what eventually became the First Amendment and comments by
Representative Theodore Sedgwick:
Sedgwick's point was that the
constitution should not be cluttered with a potentially endless list of
trifling rights that 'would never be called in[to] question' and were
not 'intended to be infringed.' Sedgwick's argument implicitly
assumes that the 'self-evident, unalienable,' and inherent liberty
rights retained by the people are unnumerable because the human
imagination is limitless. All the actions one might take with
what is rightfully his of hers can never be specified or reduced to a
list. It includes the right to wear a hat, to get up when one
pleases and go to bed when one thinks proper, to scratch one's nose
when it itches (and even when it doesn't), to eat steak when one has a
taste for it, or take a sip of Diet Mountain Dew when one is
thirsty. Make any list of liberty rights you care to and one can
always add twenty or thirty more. (Randy Barnett, Restoring the
Lost Constitution: the Presumption of Liberty, (Princeton University
Press, 2004) 59.)
The Ninth Amendment and the MFFA
There are two different ways in which activities recognized and allowed by the MFFA are protected by the Ninth Amendment.
The first is through the natural right of self-defense. The MFFA
protects from federal regulation or prohibition the manufacture or sale
of any firearms, ammunition or firearm accessories made and retained
within Montana. As has been discussed above, the right to bear
arms is an essential corollary to the natural right of self-defense.
Certainly the right to self-defense would be worthless if the tools
necessary for the action were prohibited or unnecessarily restrained by
government edict. What value would freedom of the press be if
newspapermen were denied printing presses? What value would
freedom of religion be if religious people were denied places of
assembly for worship, permission to speak about their theology, or the
ability to reproduce and distribute their sacred texts?
The current federal scheme of regulating the supply system for new
firearms in the U.S. is so complete it is effectively a
government monopoly over the supply of firearms. Under current
federal regulation, no firearm may be made or sold to another person
without federal government permission - not one firearm.
Although firearms are available through this monopolistic federal
firearms provision system, that new firearms are available only through
this system is just one possible source of the tools essential to the
exercise of the natural right of self-defense. There is another
possible source - outside of this monopolistic federal scheme. To
be fully innervated, this natural right must be able to be satisfied
also by supply sources outside of this federally controlled supply
Said differently, this natural right is reduced to a privilege if a
person may only obtain essential tools from an outlet operated
exclusively under national government control and permission. Would freedom
of speech be free if people were only allowed to make
government-sanctioned and licensed speeches? To be truly free,
how people express themselves must be largely unconstrained. With
the natural right of self-defense, people must also be allowed access
to firearms made and sold outside the government-controlled supply
The second way that the MFFA falls under the natural rights protection
of the Ninth Amendment has to do with individual economic activity.
Since it is presumed that the Framers knew what they were doing and
what they were saying, and that their acts were authoritative, one must
ask if individual economic activity were usual and understood when the
Bill of Rights was written and adopted.
As people own themselves, one of their natural rights is to benefit
from their own labor and obtain the fruits of their labor. Each
person's time on Earth is finite and valuable. Each hour is an
unrecoverable hour of a person's life's fixed duration, which hour may
be spent in whatever productive or non-productive activity the person
may choose. Anything otherwise is some form of slavery. One
corollary to this is that people generally must be allowed to accrue
and retain the fruits of their labor, the translation of their life
hours into tangible goods or other self-assessed benefits.
Therefore, if a person wishes to spend his hours contemplating Walden
Pond, building his house, or making a pair of shoes to exchange with
his neighbor for bread, that activity becomes a natural right, one of
the unenumerated natural rights protected by the Ninth Amendment.
Thus, the production and sale of MFFA-protected items in Montana falls
within the natural rights protected by the Ninth Amendment.
The Effect of Amendments
This discussion would be incomplete without a review of the effect of amendatory language.
Can it be said that the amendments to the Constitution have no effect
on the underlying Constitution, that the amendments are some sort of
reality separate from the original Constitution? For example, is
the tax power of Congress unaffected by the reservation of freedom of
speech in the First Amendment? Could Congress tax speech
notwithstanding the First Amendment prohibition? Is Congress's
tax power in regards the potential to tax free speech unaffected by the
It would probably be difficult to find anyone to argue that the restraints on federal government power contained in the Bill of Rights
have no effect on how the federal government applies the powers in the
original Constitution, or what the breadth of those powers may be.
As another example, the Eighteenth Amendment to Constitution, along
with the Volstead Act (which defined "intoxicating liquors" excluding
those used for religious purposes and sales throughout the U.S.),
established Prohibition in the United States. Ratification of the
Eighteenth Amendment was certified in 1919.
Without the Eighteenth Amendment, it was generally agreed, Congress lacked authority to prohibit intoxicating liquors.
The Twenty-first Amendment was adopted in 1933, repealing the Eighteenth Amendment.
Would anyone argue that the Volstead Act and any other Prohibition laws
enacted by Congress between 1919 and 1933 remained valid after 1933,
notwithstanding the Twenty-first Amendment, because those laws somehow
remained authorized under the Supremacy Clause, the Necessary and
Proper clause, or the Commerce Clause of the underlying Constitution?
It is a "maxim of universal law" that when two provisions of a coequal
body of law are in conflict, the most recently enacted prevails as the
most recent expression of the enacting authority. Otherwise
amendment of any body of law would be impossible or without
effect. Since the Ninth Amendment was enacted subsequent to the
underlying Constitution, deference must be given to the intent for the
Ninth Amendment. (Leges posteriores priores contrarias abrogant.
Subsequent laws repeal those before enacted to the contrary. 2 Rol. R.
410; 11 Co. 626, 630, Bouvier's 1856 Law Dictionary) (Where conflict
arises between two seemingly contradictory statutes it is the later Act
which takes precedent. This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant"; http://en.wikipedia.org/wiki/Implied_repeal#cite_note-0 ) (Quod populus postremum jussit, id just ratum esto. What the people have last enacted, let that be the established law. - Bouvier's 1856 Law Dictionary)
The current scheme of regulation of firearms manufacture and sale is said to be
justified under the power of Congress to regulate commerce among the
states, and may be implemented via the Supremacy Clause or the
Necessary and Proper Clause (discussed more specifically in the next
section). However, those powers were modified and amended by the
Impact of the Ninth Amendment on the Commerce Clause,
Necessary and Proper Clause and Supremacy Clause, and on the MFFA
The central question in the MFFA litigation, MSSA v. Holder,
is whether or not Congress has legitimate authority to regulate the
purely intrastate commercial activity allowed under Montana law by the
MFFA. The answer to this question depends on how much latitude
for regulation of intrastate commerce is allowed under the Commerce Clause.
Since many argue that the Commerce Clause powers are actually exercised
under and through the Supremacy Clause and the Necessary and Proper
Clause, let us first address those.
Some advocate that the Supremacy Clause requires that all federal laws
prevail over all state interests, state laws and state constitutional
provisions. Such a view invades the traditional sphere of state
authority in the shared sovereignty of a proper federal/state
relationship. This view is far broader than intended by our
Founders, and broader than tolerated by the Supreme Court as evidenced
in decisions such as U.S. v. Lopez, New York v. U.S., and Printz v. U.S.
Further, the Supremacy Clause is found in Article VI, Section 2 of the
U.S. Constitution, and says, "This Constitution, and the laws of the
United States which shall be made in pursuance thereof, and all
treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges in
every State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding."
For the purpose of this discussion, the operative language is that
which conditions and qualifies the supremacy of federal law, "This
Constitution, and the laws of the United States which shall be made in pursuance thereof
…" (Emphasis added.) In order to be supreme, federal laws must be
consistent with and bow to the Constitution. If the Ninth
Amendment means anything at all, it must temper and modify the
Supremacy Clause, and provides ample basis to question the theory that
all federal laws are supreme, regardless.
The Necessary and Proper Clause allows legitimate authority for any
congressional acts that are necessary and proper to implement the
limited powers allowed to Congress in the Constitution.
The Necessary and Proper Clause, found at Article I, Section 8, gives
Congress the power, "To make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other
powers vested by the Constitution in the government of the United
States, or in any department or officer thereof."
Although the Necessary and Proper Clause appears to speak very directly
to implementation of the Commerce Clause, one of the "the foregoing
powers," it too is a conditional grant of power, conditioned in at
least two important ways.
First, it is conditioned on the requirement that any laws so
and deemed "necessary and proper" must be within the enumerated powers
given to Congress. A law to forbid people of a certain religious
persuasion from engaging in free speech or assembly would lack the
essential foundation of authority under an enumerated power and would
not be valid just because Congress declared it to be "necessary and
Second, it is conditioned on the requirement that such law not run
afoul of prohibitions of authority explicitly stated in the
Constitution. In the example preceding, the First Amendment would
preclude any such congressional exercise of power.
Concerning use of the Necessary and Proper Clause to implement
authority based on the Commerce Clause regarding activities allowed by
the MFFA, those activities are wholly intrastate, so Necessary and
Proper implementation of contrary federal laws fails the first test
above because the enumerated power being implemented, the Commerce
Clause, only affords Congress the power to regulate commerce "among the
states." Likewise, Necessary and Proper implementation of federal
Commerce Clause power over wholly intrastate activity is preempted by
the amendatory and prohibitory effect of the Ninth Amendment.
Finally, what is the effect of the Ninth Amendment upon any conflict
between activities authorized by the MFFA and federal laws to the
contrary based on Commerce Clause power?
Cogent and rational arguments are made by other parties to MSSA v.
Holder about the proper reach of federal commerce power. In
regards the impact of the Ninth Amendment it is only necessary to say
here that in prior Commerce Clause jurisprudence, growing food on one's own land to feed one's family (Wickard v. Filburn) and state-sanctioned, sale of legal marijuana somehow affecting an illegal interstate market (Gonzales v. Raich),
both used to justify federal commerce power, is exactly the sort of "…
jury-rigging new and different justifications to shore up the original
mistake” that Chief Justice Roberts identified in Citizens United v. F.E.C.,
and is an exact fit with the "underlying reasoning has become so
discredited that the Court cannot keep the precedent alive …" sentiment
Roberts also articulated.
The jury-rigged status of commerce clause precedent, held shakily
together with baling wire and duct tape, to the broad and specific
detriment of states' rights and individual liberty, must yield in MSSA v. Holder
to the amendatory and prohibitory effect of the Ninth Amendment.
This is so obvious and frustrating as to call to mind a relevant quote
by President John F. Kennedy, "Those who make peaceful revolution
impossible, make violent revolution inevitable." (Speech at the
White House, 1962)
It is very difficult to conclude that the Ninth Amendment has no
relevance to the MFFA whatsoever. To do so, one must adopt some
form of the argument that the Constitution is outdated and/or
meaningless, or at least that a significant part of the Constitution is
so. However, as Justice Scalia said in his closing line of the
Court's Opinion in D.C. v. Heller,
"… what is not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct." What is true for the
Second Amendment is also true for the Ninth Amendment.
The Constitution is presumed to have been legitimately adopted, and
that those who adopted it knew what they were doing and carefully
intended the currently understandable language they ratified.
Natural rights were an essential part of the framework of understanding
that lay behind and enmeshed with the intent for the
Constitution. By the Ninth Amendment, the people reserved to
themselves all of those natural rights and prerogatives, the "residium"
of rights, not specifically delineated in the first eight amendments to
the Constitution. Those unenumerated rights include the right to
self-defense, the tools necessary for self-defense, and the ability to
obtain those tools outside of a monopolistic regulatory scheme
maintained by the federal government. Those unenumerated rights
also included the right of individual people to engage in productive
economic activity without federal prohibition or threat of
incarceration in federal prison. For these reasons, activities
authorized by the MFFA are protected from federal interference by
operation of the Ninth Amendment.