Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment
By Nicholas J. Johnson
Publication Date
1992
Abstract
"Traditionally, the debate over the individual right to possess firearms has focused on the origins and meaning of the Second Amendment. Some constitutional scholars have dismissed the idea that the Second Amendment protects an individual right to arms. They argue that it only prevents the federal government from disarming states. Other scholars,focusing on the language of the amendment and its historical context, conclude that it does indeed establish an individual right to firearms. This article examines whether, even absent the Second Amendment, the Constitution restrains government from taking away what may be individuals' best tools of self-defense. The foothold for the analysis is the controversial Ninth Amendment.
Predominantly, I will use principles that can be gleaned from the models offered for invigorating the Ninth Amendment to expose the array of difficult questions we must face before disarming citizens. In exploring these questions I will suggest that we can indeed derive an individual right to arms from the Ninth Amendment and are required to abandon some basic beliefs about our Constitution and the role of government if we deny the existence of that right. I also will suggest that abandoning those principles here makes advocacy of other Ninth Amendment rights highly problematic. In a smaller way, I hope to respond to the call to open the debate over individual firearms to frequently discounted voices. I will assume as an opposing position the alternative to general disarmament."
Recommended Citation
Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1 (1993).
