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.

Discussion parameters

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 reasons.

However, it is important to note two important points.  First, this grant of power from sovereign individuals to state, and secondarily from state to federal, 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 a very specific purpose.  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 limitations on the powers of the central government.  These, of course, are contained in the Bill of Rights, adopted subsequent to the underlying Constitution.

The subsequent adoption of the Bill of Rights is stressed here because it is possible 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 all of these presumptions, what is the Ninth Amendment all about and what is its effect?

The Ninth Amendment cannot be understood without discussion of natural rights.

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 "natural rights."

"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 man."

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 place 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 interference.

[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 though 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 might actually constitute a government monopoly on the supply of firearms.  Under current federal regulation, no firearm may be made and 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 system.

Said differently, this natural right is reduced to a privilege if a person may only obtain essential tools from an outlet operated exclusively under federal 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 chain.

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 First Amendment?

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.

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"; )  (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 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 Ninth Amendment.

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 enacted 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.  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.