Kurt Lash Replies to My Post on the Ninth Amendment:
Kurt Lash has composed the following reply to my post on Justice Scalia's brief reference to the Ninth Amendment in Heller, which I post here with pleasure:
I want to thank Randy Barnett and the folks at The Volokh Conspiracy for allowing me to respond to Professor Barnett's post on Heller and Justice Scalia's reference to the Ninth Amendment. I also want to congratulate him for having his Second Amendment work cited, and his individual rights approach embraced, by the Heller majority.

In building the case for his individual rights reading of "the people" in the Second Amendment, Justice Scalia points to other provisions in the bill of rights which refer to the people, such as those in the First, Fourth, and Ninth Amendments. According to Scalia, "All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body." Randy reads this passage as the Court's official rejection of the "collective rights" reading of the Ninth Amendment—a position which he ascribes to both my work and that of Yale Professor Akhil Amar. While I agree that Justice Scalia rejected a "collective rights only" reading of the Ninth Amendment, this is not my position on the Ninth, nor do I believe this sentence necessarily suggests that Scalia has embraced Prof. Barnett's view of the Ninth.

There are three common positions one can take on the retained rights of the Ninth Amendment, two that are exclusive, and one that is inclusive. The first exclusive position sees the Ninth as referring only to collective rights—those rights which can only be exercised by the people in some collective capacity, such as in a militia or as a group during a revolution. This view, which arguably reflects Professor Amar's reading of the Ninth, is clearly rejected by Justice Scalia. A second exclusive position is that the Ninth Amendment refers only to individual rights. This is Professor Barnett's reading of the Ninth Amendment and the position he believes Justice Scalia has embraced. But note what Justice Scalia actually said—he characterizes the "collective rights" reading as allowing for "only" collective rights (and no others), and declares that this exclusivist reading of the Ninth must be wrong because the Ninth refers unambiguously to individual rights. Now this may be an exclusive reading of the Ninth as only protecting individual rights, but this is not necessarily the case. It could be that Justice Scalia follows—or at least is open to—an inclusive reading of the Ninth Amendment which protects all retained rights, whether individual or collective (or any other kind of right).

The inclusive reading of the Ninth, which I have recently presented in the Stanford Law Review (here), reads the text at full value: all rights not delegated into the hands of the federal government are retained by the people. This includes everything from the individual right to sleep on the left side of the bed, to the collective popular sovereignty right to reform the people's government, to the majoritarian right of local majorities to regulate local commerce and agriculture. This inclusive approach rejects any view of the Ninth that limits the retained rights of the people to only one particular category (whether individual or collective). Notice, in this regard, Scalia rejects the collective rights position because it "only" protects collective rights, whereas he believes it clearly protects individual rights. This view is perfectly consistent with both Barnett's exclusive reading of the Ninth and my inclusive view of the Ninth. Scalia goes on to cite other provisions which seem to involve purely collective rights (such as the tenth), but, once again, nothing about this exclusive reading of the Tenth conflicts with the inclusive reading of the Ninth.

For Prof. Barnett, the possibility that the Ninth Amendment includes collective and majoritarian retained rights as well as individual rights has real bite. It contradicts his view that the Ninth and Fourteenth Amendments are mirror images of one another, both protecting (only) individual rights, one against the federal, the other against the states. It also seriously conflicts with his general rejection of the so-called police powers of the states.

It is an open question whether Justice Scalia meant to reject the inclusive view of the Ninth Amendment. It is unlikely he did, for even if the Second Amendment contains an individual rights component, it is implausible to believe that it did not also contain a states' rights aspect protective of state regulated militias. This was precisely Justice Joseph Story's view of the Ninth Amendment and state militia power in Houston v. Moore. Most of all, regardless of Justice Scalia's complete theory of the Ninth Amendment, his single sentence on the Ninth in Heller did not include a "single word" of historical analysis—the very omission Scalia criticizes in regard to earlier unsupported assertions the Supreme Court made about the Second Amendment. We are left then not with a sentence that settles the matter, but one which invites further study—and a future case. It is my hope that when a proper Ninth Amendment case comes before the Court, Justice Scalia and the majority will show as great an interest in the history of that Clause as they did for the Second Amendment in Heller.