[ Back | Home ]

[Copyright © 1992 Nicholas J. Johnson. Originally published as 24 Rutgers L.J. 1-81 (1992). Permission for WWW use at this site generously granted by the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

BEYOND THE SECOND AMENDMENT: AN
INDIVIDUAL RIGHT TO ARMS VIEWED THROUGH
THE NINTH AMENDMENT

Nicholas J. Johnson[*]

I. Introduction

Traditionally, the debate over the individual right to possess firearms has focused on the origins and meaning of the Second Amendment.[1] 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.[2] Other scholars, (p.3)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.[3]

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.[4] In a smaller way, I hope to respond to the call to open the debate over individual firearms to frequently discounted voices.[5] I will assume as an opposing position the alternative to general disarmament.[6](p.4)

II. The Ninth Amendment as a Meaningful Constitutional Guidepost

Recent Ninth Amendment literature yields two notable models for understanding and construing it.[7] The predominant one, which I have labeled the "deep structures" model, focuses on broad constitutional values and the fundamental structure of our constitutional democracy. The second model, used on a more limited basis, stems from a framework of "natural rights."[8]

The deep structures model contains an array of approaches, whose nebulous and flexible standards are similar to those the Supreme Court has used both in incorporating parts of the Bill of Rights as restrictions on state action and in establishing unenumerated rights without explicitly invoking the Ninth Amendment.[9] These approaches suggest that unenumerated rights arise on their own merits through an examination of their fit with, and necessity to, the functioning of our constitutional structure.

One rendition of the deep structures model posits that the Supreme Court might derive specific rights from the Ninth Amendment by starting "with the strong historical argument that [the amendment was] intended to apply in a situation where the asserted right appears to the (p.5)Court as fundamental to a free society.... [T]he textual standard should be the entire Constitution."[10]

One commentator offers an open-ended test of "reasonableness":

[Other commentators] err in thinking constitutional theory should look for ways to close the ninth amendment and other open-ended provisions by identifying "sources" to which judges and others can go to locate rights for application in concrete cases....

....

Applying some meaningful test of reasonableness would find judges and others conducting case-by-case review of legislation in changing circumstances. For the reasonableness of measures is a contextual matter. Because we cannot control the future, we cannot know in advance of particular circumstances where the harm visited by government on some individual or minority would be justified by a credible view of the common good within the system's capacities. Thus, a reasonableness test is incorrigibly open-ended. And the right to be harmed only by governmental acts that are reasonable by some honest test is the least of the protections we could expect under the ninth amendment.[11]

Another approach is less supportive of the direct substantive value of the Ninth Amendment, relying instead on the historical context of the Bill of Rights.

With or without the Ninth Amendment, we would have to approach the task of constitutional interpretation with some basic understanding of the sources from which the document derives (i.e., both the history of the American Revolution and the liberal and republican philosophies which had inspired the founders), its overall purpose and design (i.e., the political philosophy of the founding generation), and its views of the relation of the government to the individual (i.e., a more general philosophical view of the meaning of life and the place of the political community within it).[12]

Sanford Levinson suggests that our understanding of the Ninth Amendment might grow from:(p.6)

close attention to the narratives by which we constitute our own particularistic way of life. Such listening--and the careful interpretation of what we hear will enable us to grasp the deep structures that constitute our political order and to understand as well that some transitory political notions, even when embodied in legislation, could be in serious conflict with these structures.[13]

Justice Goldberg's concurring opinion in Griswold v. Connecticut[14] offers one of the most extensive treatments of the Ninth Amendment in a Supreme Court case. It suggests that judges might derive rights from the Ninth Amendment by looking to "the traditions and conscience of our people [to determine whether a principle is so rooted] as to be ranked as fundamental."[15] Such a fundamental right, which cannot be denied, is one which "lie[s] at the base of all our civil and political institutions."[16]

Taken together, these approaches prompt us to question whether our beliefs and convictions about core constitutional concerns permit us to take the steps we must take and believe the things we must believe in order to prohibit individual possession of firearms for self-defense.

III. A Focus on Individual Self-Defense

The central question in this article is whether the interest of individual citizens in protecting their own lives from physical threats, collective and political implications aside, establishes a right to possess weapons that are useful in repelling those threats.[17] The search for an (p.7)answer can begin with the suggestion by positivists that the sum total of individual rights lies in the language of selected parts of the Bill of Rights.[18] There are at least two difficulties with the positivists' approach. First, the Supreme Court already has established unenumerated rights through strenuous manipulation of the enumerated guarantees.[19] Second, there plainly are numerous simple acts of individual autonomy that we undertake daily which are not explicitly protected by the Bill of Rights. It is troubling to conclude that these acts are protected only by creative extrapolation of the meager provisions of the explicit guarantees. It is this range of acts that the Ninth Amendment might necessarily protect. By comparison, we gain some insight into whether the Ninth Amendment might accommodate a right to firearms ownership for individual self-defense.

In the debates over ratification of the Bill of Rights, delegates commonly objected that it was impossible to list the rights of free men. Speakers made reference to various common activities, questioning whether the right to wear the hat of one's choosing would be guaranteed, whether one could eat at the time one chooses, or whether one could undertake various other individual activities without interference from or regulation by government.[20]

Ownership of firearms was commonplace during the revolutionary period. Their use and ownership for many purposes was considered essential and completely noncontroversial.[21] "Throughout the Colonies, no implements were more abundant than firearms; none was more in use, more used up, more in demand. Gunsmiths of Europe flocked to (p.8)the Colonies, sure of steady employment at repairing, and making and selling."[22] While the concept may be difficult to digest today, "it was considered normal for eighteenth century civilians to carry pocket pistols for protection while traveling."[23] "The sense of group self-preservation and self-defense was strong."[24] Firearms were not only commonplace, but also they were, at times, required to be kept.[25]

Our common law supports an individual right to arms for self-defense, unimpaired by governmental restrictions. Fourteenth century English weapons restrictions included explicit exceptions for both self defense and the defense of one's dwelling.[26] In a detailed examination of the 1780 Opinion of the Recorder of London on the Scope of the Right to Have Arms in England, David Caplan shows the Recorder endorsing unequivocally an individual right to arms for self-defense (p.9)"where there is no time to invoke the aid of established authority," but distinguishing unauthorized exercises by assemblies of armed men.[27]

At least one modern writer has moved toward acknowledging this dichotomy:

The framers do not appear to have distinguished sharply between the "personal safety" reasons for possessing weapons and the "political safety" reasons that were at the forefront of the debate that led to the adoption of the Second Amendment. One likely explanation is that, at the time of the Amendment's adoption, America retained a predominantly rural culture with a frontier ethos, and no one had any reason to expect that a popularly elected government would have any motive to interfere with its citizens' ability to defend themselves against the hazards of everyday life.[28]

From this perspective, even if we accept the Second Amendment as protecting only a collective right, it remains possible that an individual right to arms to repel immediate and proximate threats was considered by the framers as basic as the right to dress warmly against the cold.

Justice Holmes implicitly accepted some element of this sentiment in one of the Court's early decisions in this century, Patsone v. Pennsylvania.[29] He concluded that a ban on aliens' possession of long arms was permissible as a hunting control measure, because the ban did not extend to handguns, which might be needed "occasionally for self-defense." This passage appears to recognize some level of individual interest in arms for self-defense, but it does not explicitly invoke the Second Amendment.

There was serious debate over whether listing some of the more abstract constitutional rights was descending into minutia. A good example is the House debate in the First Congress over the necessity of a constitutional amendment protecting the right of peaceable assembly. Ninth Amendment commentator, Charles Cooper, notes the objection of Congressman Sedgwick of Massachusetts that the right to assembly was too "self-evident" and "inalienable" to ever be called into question. (p.10)Sedgwick contended that a descent into such "minutiae" would lead to a trivial and lengthy enumeration of other obvious rights.[30]

A connection exists between individual Americans and arms that goes deeper than the mere utility of firearms. It appears to be an almost spiritual attachment.[31] Historically, ownership and proficient, responsible use of firearms were connected directly to the development of the character and self-discipline that were considered necessary characteristics of citizens in a free society.[32]

Plainly, the framers' attitude about firearms was drastically different from some we find today. Guns were not considered the embodiment (p.11)of evil with "little, if any, compensating social advantage."[33] They were useful, vital tools as common as any other item manufactured by craftsmen of the period. Once we recognize this and appreciate that for many Americans, firearms still are commonplace, useful tools with unmatched utility for self-defense, we might view possession of arms for individual defense to be as basic as the right to choose a heavy coat against the cold.[34] Characterized this way, a right to arms for self defense might be retrieved from the Ninth Amendment along with the right to engage in a myriad of other basic human activities.

As a byproduct, this individual defense focus offers a principled basis for prohibiting access to highly destructive weapons. Prohibitions might focus on whether the weapon can be discharged in close proximity without injuring the user and whether it can be operated by a single individual. If the focus is direct and immediate individual defense, then we might sensibly differentiate between long-range or remote delivery weapons of destruction and personal weaponry suitable for individual self-defense.

It is also possible that a purely self-defense based right to arms would achieve some of the arguably noble goals of a citizens' militia. The presence of scores of millions of individual Americans protecting their private interests undoubtedly would be a daunting prospect for an (p.12)invader or emerging despot to contemplate, especially as compared to the deterrent value of a disarmed populace.

IV. Conflicting Constitutional Visions: Lockean and Classical Republican

At one level, the controversy over constitutional protection of individual firearms is a product of conflict between the two primary views of the roots and purposes of our Constitution and the relationship between government and individuals. The Classical Republican vision emphasizes a strong state with a focus on order. The Lockean vision, influenced by Enlightenment thought, emphasizes individual liberty and the subordination of the state.[35] Some argue that the Lockean vision predominantly influenced the framers' views of constitutional democracy.[36]

Nonetheless, much of the traditional Second Amendment debate presumes that Classical Republicanism was the driving force behind the framers' constitutional vision.[37] Despite the disregard of the Lockean (p.13)vision in Second Amendment debate, it figures prominently in efforts to revive the Ninth Amendment[38] and sets one on the path to determining whether individual Americans have the right to own and use guns for their personal defense and security.

A Lockean focus substantially affects our view about the allocation and control of tools useful in exercising and resisting power. There is an inherent tension between the ideas of individual liberty and order through a strong state. The coexistence of these two forces at the root of our constitutional system suggests they must exist in some sort of equilibrium.[39] We should, therefore, be reluctant to eliminate instruments necessary to the vitality of either of these competing forces. The question is whether guns in the hands of individual citizens can be classified among those important instruments.

In addressing this question, one must consider the importance of force as a factor in conflict resolution. The ability to exert force may (p.14)impact the degree to which individual liberty succumbs to the collective will.[40] Assuming the goal of a balance between individual liberty and collective interests, there is something unattractive about placing all of the most effective tools of violence where they are likely only to be used to further collective interests.[41]

If we reject this conclusion, then we should examine the degree to which our doing so is a result of making one of three assumptions: 1) the constitutional importance of the Lockean vision of individual rights must yield to the Classical Republican vision; 2) the concept of Lockean individualism must depend on the benevolence and goodwill of the collective in its exercise of a monopoly on the tools of violence; or 3) there is something inherent in our constitutional structure that will restrain the collective's monopoly on force and prevent it from bending individual interests utterly in the direction of the collective will. To the degree we rely particularly on the last two of these assumptions we may have cause for concern.

The problem is illustrated by turning the issue on its head. The question then would be whether the Classical Republican vision of liberty through a strong state could survive if government were prevented from possessing and using arms. Could government successfully rely on the goodwill of armed citizens? Would unilaterally armed citizens conform both to the decisions reached in the democratic process and to the authority exercised by their representatives? Given such an imbalance in the ability to use force, we might expect that collective interests would readily succumb to individual interests in instances of serious conflict. An imbalance in the opposite direction, then, could have an equivalent impact. In instances of significant conflict, the unrestrained government power resulting from a disarmed citizenry could permit collective interests to utterly dominate individual interests. Under such circumstances, the Lockean vision of government's role seems to evaporate.[42](p.15)

There is an unacknowledged kinship between Second and Ninth Amendment scholars. Each has produced Lockean support for armed self defense.[43] Professor Barnett uses Locke to advocate a Ninth Amendment right to associational freedom.[44] Particularly pertinent for these purposes, Professor Barnett notes:

A Lockean approach proceeds to identify more fundamental background rights that do not evaporate upon the creation of a government or the expression of a majority will. Locke called these rights "property rights;" that is, rights to acquire, use and transfer ownership of resources in the world. Such rights are the principal means by which life, liberty, and the pursuit of happiness are facilitated in the social context. Such rights include not only the right to external resources but also the right to one's person.[45]

Taking a natural rights view of the Ninth Amendment, Professor Moore draws substantially on Locke, citing many passages, which simultaneously support an invigorated Ninth Amendment and, though it was not Moore's intent, lay a foundation for or directly support an individual right to arms. Notably he quotes Locke's observation that:

[G]overnment is the product of free contract, that the governors of a people hold their authority only in trust, that when such trust is violated, a people can rightly exercise their strength--though only under the greatest provocation--to undo tyranny.[46]

His selection from Locke's chapter entitled "Of Slavery" in the Second Treatise on Civil Government is also noteworthy:

This freedom from absolute arbitrary power is so necessary to, and closely joined with, a man's preservation, that he cannot part with it but by what forfeits his preservation and life together. For a man not having (p.16)the power of his own life cannot by compact or his own consent, enslave himself to anyone, nor put himself under the absolute arbitrary power of another to take away his life when he pleases.[47]

Lockean support has figured prominently in Second Amendment commentators' work. Stephen Halbrook, for example, cites Locke's Second Treatise on Civil Government as direct support for a right to individual self-defense: "[i]t being reasonable and just that I should have the right to destroy that which threatens me with destruction."[48] Halbrook argues that Locke strongly opposed a disarmed populace:

It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate's hand to execute his unlimited will arbitrarily upon them. This were [sic] to put themselves into a worse condition than in the state of nature, wherein they had a liberty to defend their right against the injuries of others and were upon equal terms of force to maintain it, whether invaded by a single man or many in combination. Whereas, by supposing they have given up themselves to the absolute power and will of a legislator, they have disarmed themselves, and armed him, to make prey of them when he pleases.[49]

The Lockean view that core individual rights exist without being created by the state offers a comfortable pathway to a meaningful Ninth Amendment. It is not surprising that Locke endorsed an individual right to security against physical threats. Any effort to invigorate the Ninth Amendment through John Locke's political philosophy must either acknowledge that an individual right to arms stands high among protected rights or find efforts to exclude it troublesome.(p.17)

V. Constitutional Structure and Assumptions about the Role of Government: Do They Square with Disarmament?

A. Fear of Government.

The idea that the framers feared and distrusted the power sited in the federal government specifically, and perhaps collective power generally, is vital to giving meaning to the Ninth Amendment.[50] Acknowledging this should engender difficulty with disarmament, for disarming means entrusting exclusively to government some of the most important tools for maintaining individual security. It means trusting government to use its exclusive power to benevolently and competently protect its citizenry.[51] Our political history shows that placing blind trust in government may be dangerous.[52] Another choice, wholly abandoning (p.18)(p.19)the idea that distrust of government is necessary and proper, seems equally ill-advised. This distrust is, after all, independently important to invigorating the Ninth Amendment.[53]

B. Forced Reliance on Government

Disarmament may push us to the unprecedented step of forcing individuals to rely solely on government to protect a fundamental human concern. Traditionally, we have believed that the Constitution gives government certain options to exert power and restricts the ways that power can be exercised. It is highly controversial to say that anything in the Constitution guarantees citizens benefits from government, including individual protection. Disarmament would have us take the more troublesome leap past guaranteed benefits directly to forced dependency. While we may be at a point where such dependency is encouraged by many and would be forced by some, we should acknowledge that such dependency is a major departure from the framers' design.

When we consider the imposition of the same limitations on other basic human concerns or currently perceived constitutional rights, the problem is exposed. Would it satisfy us to be forced to rely on government for our economic security in the form of a dole check, a system where the accumulation of private wealth was prohibited in favor of collective measures? Should the government directly control the engines of commerce, forcing us to trust our representatives to administer those engines effectively and benevolently? Would it satisfy (p.20)us to have only government outlets as the forums for exercise of our First Amendment rights? Would we be satisfied if government owned the media, but was firmly committed, through the best rhetorical guarantees we could imagine, to administering it in our best interests? Would we consider forced exclusive reliance on public education, public housing, or public food distribution acceptable?

Given the less than perfect track record of collective attempts to solve individual problems, and the viable arguments that government involvement has exacerbated those problems, it may be a severe mistake for individuals to rely completely on collective measures to satisfy their basic needs and repugnant that they be forced to do so.[54] We may find it difficult to explain how forced reliance on government for individual security is constitutionally more palatable than forced reliance for less substantial human concerns. The difficulty is magnified when we consider that the collective commitment to protecting individuals from physical threats is only discretionary.[55]

Several writers have taken a natural rights view of the Ninth Amendment, arguing that the founders conceived of a host of indefeasible natural rights that could not be taken away even by an exercise of majority will "without violating [them]."[56] From at least one notable perspective, forcing individuals to rely on government to preserve their lives violates one of the fundamental natural rights of man.[57] Proceeding from a natural rights view, the Ninth Amendment (p.21)supports not only an individual right to arms, but also the argument that the right cannot be restricted by collective action even in the form of a prohibitive constitutional amendment.[58]

Alternatively, Dr. Lund contends that "the basic postulate of liberal theory [is] that citizens only surrender their natural rights to the extent that they are recompensed with more effective political rights."[59] If this sentiment influences our view of when individual options can be restricted, then disarmament may be inappropriate so long as there is no constitutional right to protection by the state from violent threats.[60]

Even if a constitutional right to protection by the state were established as a counterweight to an individual right to arms, we would have to consider the effectiveness of such a guarantee. Experience shows that in virtually any large-scale, collective effort, there are jagged edges around the mold causing many people, often the unpopular or powerless, to fall away as dross. Certainly, particular individuals and communities have experienced an allocation of collective resources that disfavors them. In many instances, the tacit response might be that they already take more than they put into the collective pot and they ought to do more for themselves.

In this analysis, that response changes and raises with it the problem of inevitably limited public resources. We should expect those individuals at the end of the line for allocation of other government resources also to be the last in line for security services.[61] Moreover, in (p.22)any grand design to protect a disarmed citizenry, the system simply will breakdown. When that occurs, even a constitutional guarantee of protection by the state will be meaningless.[62](p.23)

Some of us are comfortable with forcing individuals to cede firearms exclusively to collective control. This stance forces an array of uncomfortable assumptions. It implies that an individual's interest in self-preservation is not so important that it cannot be ignored in the interest of order or making governing easier. It assumes that unarmed individuals are at no disadvantage against armed aggressors. It demands that agents of government can and will be summoned and arrive the instant a violent threat arises. It presumes that only agents of government can be qualified to resist violent aggression in kind and must do so on behalf of citizens who cannot defend themselves. It relies on government's competence and benevolence, and on the future's predictability, ensuring that collective measures will be sufficient to resist the threats that arise. Perhaps more troubling than all of these is the assumption that the most effective mode of self defense permitted under a constitution written by revolutionaries, who distrusted government and believed in innumerable individual rights, is the First Amendment right to scream 911.

C. The Impossibility of Trusting Collective Security Mechanisms

Simply as a matter of logistics, it may be impossible for citizens confidently to put their trust in collective security resources. Exclusive reliance on collective security mechanisms exacerbates an inherent problem: violent threats to individuals do not come pre-announced. Consequently, collective security resources cannot be present at the instant needed.[63] The situation would be much like telling a climber that all ropes will be collectively controlled. If he begins to fall, then he need only call, and an agent of government will be dispatched to bring the rope that will prevent his injury or death. Unfortunately, once the need for the resource arises, assistance will in many instances be too late. (p.24)Taking the analogy further to incorporate the additional problem of limited resources by assuming that there are at any one time one hundred actual climbers, thousands of potential climbers and only five rope administrators, together with the acute nature of the need, we should question the wisdom of the decision which prohibited self-help and individual ownership of ropes.

D. A Core Vision of America

We might also consider whether the type of society that would justify and benefit from disarmament was the type anticipated by the founders. The question does not suggest that we should develop precisely in accordance with the framers' vision or that the Constitution is inflexible, but, to the degree that changes in our society precipitate a movement toward greater reliance on government, we may begin to break away qualitatively from sentiments that are at the core of our constitutional design. Against this backdrop we can evaluate whether the vision of America that drives disarmament advocacy conflicts with vital constitutional principles.

By many accounts the framers envisioned a rural agrarian based America. Central to their vision was the conviction that one significant threat to liberty was the decay and decadence brought on by the urban centers' focus on luxury and commerce. Indeed, one rationalization for westward expansion was to satiate the growing need for land to support this vision.[64] Adopting Jefferson's view that urbanization would lead inexorably to the diminution of liberty and a decay of the core values that the Constitution preserves,[65] we can usefully ask whether disarmament advocacy is driven by an urban vision that exalts luxury at the expense of individual liberty. To the degree it is, it may be in conflict with our core constitutional values.[66](p.25)

More than one commentator has observed that the conflicting positions on the gun issue are a consequence of two conflicting views of the ideal American society:

The first is probably predominantly urban. Their view takes bourgeois Europe as a model of civilized society[,] a just, equitable and democratic [society].... [They view] personal violence [as] shameful ... and uncontrolled gun ownership as a blot upon civilization. [The alternative vision is held by a group that is predominantly rural. They] do not tend to be especially articulate or literate, and [their] world view is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family with no interference from the state. They are "conservative" in the sense that they cling to America's unique pre-modern tradition--a non-feudal society with a sort of medieval liberty at large for every man. To these people ... [L]ife is tough and competitive. Manhood means responsibility and caring for your own.[67]

An individual right to arms fits very comfortably within the vision of rural Americans. Because rural life is not glorified in our society, the rural vision may not be popular.[68] Nonetheless, it remains reasonable to believe that vision of America is more in accordance with that of the (p.26)framers than is the urban based view that may be the predominant influence on our popular culture.[69]

Historian Robert Shalhope argues that James Harrington's work was of preeminent importance in developing the libertarian idea that the popular possession of arms was indispensable to democratic government. Harrington argued that democratic institutions depended on a "'virtuous' citizenry,"[70] requiring the dual attributes of land ownership and possession of arms. "From Harrington, libertarians came to conceptualize civic virtue in terms of the armed freeholder: upstanding, courageous, self-reliant, individually able to repulse outlaws and oppressive officials...."[71] Shalhope draws additional support from eighteenth century libertarians James Burgh and Richard Price.[72] He enlists Burgh to emphasize that:

[t]he very character of the people--the cornerstone and strength of a republican society--was related to the individual's ability and desire to arm and defend himself against threats to his person.... An integral relationship existed between the possession of arms and the spirit and character of the people. For this reason Burgh lamented the state to which English society had fallen. Having become a people interested only in luxury and commerce, Englishmen had surrendered their arms.... Burgh's distress over the loss of virility and virtue in English society echoed that of his fellow libertarians.... These men related the down-fall of English society to an increasingly luxury-loving people.... True virtue sprang from the agrarian world of self sufficient warriors.... (p.27)There was, however, still some hope in the libertarians' minds: America was an agrarian society of self-sufficient husbandmen trained in arms. There the lamp of liberty might still burn brightly.[73]

This conception of the American citizenry "became common in pamphlet literature on both sides of the Atlantic ... [and] permeated the writings of Americans during and after the Revolution."[74] The vision of an America in which individual arms are an integral part seems more consistent with the framers' conception of the democratic society than is the amalgam of concerns that makes up our popular culture.[75]

We can reasonably believe that an appropriate conception of the unenumerated rights protected by the Ninth Amendment are those rights deemed to be fundamental by the framers.[76] Embracing a vision of America which is fundamentally at odds with that held by the framers--one which implicitly rejects guarantees vital to individuals functioning within that original vision--might require something more explicit and formal than a slow evolution of constitutional doctrine and legislation implementing the modern vision. The only appropriate course may be the protracted battle of constitutional amendment.[77](p.28)

E. The Danger of Purely Abstract Controls on Collective Power

A commitment to disarmament may require an unsustainable conviction that there are sufficient systemic controls on collective instruments of violence. We fear guns in the hands of individuals because we perceive an inadequacy in the restraints to prevent their abuse. The same fear should exist with guns exclusively in the hands of government.[78] In both cases, the predominant deterrent to abuse is conceptual.

The restraint on individuals arises from the possibility that some actual physical sanction will follow episodes of abuse. In comparison, assuming successful citizen disarmament, there would be no capacity for resistance to collective abuse of force. The only protections against that abuse would be systemic internal checks and the rhetoric that accompanies them. Before we reject an individual right to arms, we should scrutinize the notion that the rhetoric which ostensibly controls collective power is effective enough to justify ceding all of our significant instruments of violence to government.[79]

Apprehension about the effectiveness of rhetoric to restrain the collective power is not new. James Madison, the "chief sponsor and drafter of the Bill of Rights,"[80] referred to state bills of rights as "parchment barriers [that had been violated] by overbearing majorities in every state."[81] Blackstone's commentaries reflect the same apprehension that arms in the hands of individuals are essential to the protection of individual rights.[82] The same apprehension, although not (p.29)always connected to individual arms ownership, is reflected in the work of modern commentators from various fields.[83]

Collective power restrained by rhetoric alone was one of the concerns of the antifederalists. A particular concern was that the federal government would use a monopoly on arms to "extort the enormous sums that will be necessary to support the civil list--to maintain the (p.30)regalia of power--and the splendor of the most useless part of the community, or they may be sent into foreign countries for the fulfillment of treaties."[84] We may have reached a level of collective fund raising[85] where it is possible to conclude that something like this type of coercion actually has occurred. Judge Arnold begins his analysis of the utility and necessity of an enlivened Ninth Amendment by stating that we currently face massive coercion, which supports a liberal social vision based on income redistribution and collective interference with private contracts.[86] However, with revenue collection having progressed to this stage with at least an ostensibly armed citizenry, we should consider what further reaches could occur were there not some minor (p.31)fear of a serious and meaningful tax revolt or the cumulative effect of numerous individual acts of resistance.[87]

Abstract rhetorical limitations on collective power seem to be weak barriers to abuse. Abstract codes cannot deter individuals intent on breaching them or those who have rationalized their breach. It is difficult to conclude, once even the nominal capability[88] to resist collective violence is surrendered, that we may rest easy in the belief that collective power is effectively restrained.[89]

F. Consent of the Governed

Constitutionally valid disarmament is difficult to square with the idea that government exists subject to the consent of the governed. That our representatives serve rather than rule is one of the fundamental structural supports of our constitutional system. It usefully informs our views of the substantive rights that may be derived from the Ninth Amendment,[90] and it generates direct support for an individual right to arms.(p.32)

In Federalist 28, Hamilton tied the right to arms to the idea that government exists through the consent of the governed. "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government...."[91] Here at once is a right to arms, tied directly to the belief that government must be consensual, and the conviction that armed self-defense is a freedom which citizens cannot properly cede and government cannot validly impair.

Federalist 28 is merely one indication that the framers considered an individual right to arms to be an essential element of consensual government. Aristotle wrote that where "the farmers have no arms, the workers have neither land nor arms; this makes them virtually the servants of those who do possess arms."[92] This classical source is particularly relevant because it is invoked directly by thinkers and writers of the revolutionary period. John Adams, for example, in A Defence of the Constitutions of Government of the United States of America,[93] enlists similar writings by Aristotle through quotations from Marchamont Nedham's The Right Constitution of a Commonwealth:[94]

One consequence of [armed citizens] was "that nothing could at any time be imposed upon the people but by their consent ... As Aristotle tells us, in his fourth book on Politics, the Grecian states ever had special care to place the use and exercise of arms in the people, because the (p.33)commonwealth is theirs who hold the arms: the sword and sovereignty ever walk hand in hand together."[95]

English libertarian writers, who strongly influenced the political views of colonial Americans, reflected the same sentiment.[96] Andrew Fletcher, writing several decades before the American revolution, warned: "he that is armed, is always master of the purse of him that is unarmed."[97]

The theoretical alternative to government,[98] Locke's state of nature, suggests that citizens really do have and should continue to have a choice about the structure of government or its very existence. We could envision a phase where collective controls and security mechanisms would be dismantled by choice.[99] In the event this course is chosen, the absence of some of the essential tools for defense, necessary for proceeding into the subsequent period, might at least temporarily impede the decision to move forward.[100]

G. Should Government Fear the Citizenry?

While the answer is unclear, we might ask whether our constitutional structure includes a presumption that those with direct control of collective power should have a healthy respect for and fear of the citizens who placed them in that position. It might be systemically healthy and necessary that our representatives fear not only being voted out of office, but also that some exercises of the power entrusted to them will be resisted by individuals with the will and the means to do so.

This idea does not rely heavily on the progression into violent conflict. Instead, it focuses on the restraining effect of the fear that certain intrusions on individual rights might trigger opposition by force. Absent this deterrent, intrusions on individual liberty might occur more (p.34)easily, particularly where there is a strong conviction that the intrusion is necessary to make governing easier.

It has been argued that the vision of government servants being fearful of overstepping their power was an element of the framers' vision. James Burgh, in a work very popular in pre-revolutionary America, argued that the impending conflict was a product of ignoring the principles that support an armed population. He urged that "there is no end to observations on the difference between the measures likely to be pursued by a minister backed by a standing army and those of a court awed by the fear of an armed people."[101] Libertarian writers John Trenchard and Thomas Gordon also considered fear of the armed citizen to be an important check on intrusive government. In language representative of this commentary, they posit: "men that are above all Fear, soon grow above all Shame."[102]

Absent the some real fear of the citizenry, limitations on the exercise of the power delegated to government are mainly rhetorical.[103] These limitations may be cold comfort, particularly to individuals or groups that have been ill-served by them in the past.

H. The Framers' View of Individual Arms

A large body of literature, distilled primarily by Second Amendment scholars, reflects and seems to have influenced the (p.35)framers' perceptions about the role of individual arms in the American constitutional system.[104] It conspicuously includes the writings of John Locke,[105] and Locke is in remarkable company.

The Federalist Papers directly support derivation of an individual right to arms for self-defense from the Ninth Amendment. Federalist No. 28 describes an "original right to self-defense which is paramount to all positive forms of government."[106] Several commentators have urged that certain rights predate government, and the Ninth Amendment preserves them.[107] The difficulty is in determining which preexisting rights are so preserved. Hamilton offers at least one indication that a right to possess arms for self-defense was considered among such inalienable rights even if it did not find its way explicitly into the Bill of Rights.

Blackstone's commentaries are particularly relevant given their influence on the Supreme Court's incorporation of provisions of the Bill of Rights through the Fourteenth Amendment. In Benton v. Maryland,[108] the Court explained its test for incorporation. The Court noted that the provision at issue, the prohibition of double jeopardy "as with many other elements of the common law,... was carried into the jurisprudence of this country through the medium of Blackstone, who codified the doctrine in his Commentaries."[109]

Blackstone viewed the right to bear arms as pre-existing government. He declared that "self-defense, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society."[110] He described a right to arms as both statutory and natural.[111](p.36)

John Adams's position on the right to bear arms is also notable, because he opposed the establishment of a right to bear arms collectively to achieve political ends. One commentator proposes that it was natural for Adams, an aristocrat, to oppose the concept of a citizens' militia;[112] however, even Adams endorsed individual arms ownership for private self-defense.[113]

Thomas Hobbes's work is frequently cited by Second Amendment commentators to support an individual right interpretation. Because Hobbes is generally viewed as laying a foundation for absolute monarchy, it is telling that even he advocated an individual right to self-defense: "A Covenant not to defend my selfe from force, by force, is alwayes voyd. For (as I have shewed before) no man can transferre, or lay down his Right to save himselfe from Death."[114]

The impact of these sources in explaining the Second Amendment may be diverted by the fact that there is explicit text to interpret. Even if we are not convinced by Second Amendment scholars' arguments, the evidence they have gathered will not disappear. The support these sources offer takes on greater significance when the individual right to arms is viewed through the Ninth Amendment. The plethora of historical support suggests that deriving an individual right to arms from the Ninth Amendment may be substantially easier than deriving other popularly advocated rights.[115] If we take the Ninth Amendment seriously, and we believe we can derive rights from it in an objective, (p.37)apolitical fashion, then we must thoughtfully consider the implications of endorsing more trendy unenumerated rights while denying that there is a principled basis for establishing an individual right to arms.[116]

I. The Implications of a Decision that the Citizenry Cannot be Trusted with Personal Weapons.

A practical rationale supporting disarmament is that some citizens cannot be trusted to act wisely or prudently in their use of firearms. This justification, though, raises the related question: can such a population be entrusted to make informed democratic decisions? Once we reach the stage where we advocate individual disarmament, we may have departed substantially from the framers' design--so substantially that, perhaps, we will no longer seriously be able to contend that government is either controlled by and serves citizens in a way that is responsive and accountable, or that citizens possess the capacity to meet their responsibility as masters of their agents in government.[117]

VI. Personal Security, Utility of Firearms and Threats

In this section, I will examine the case for individual arms by pursuing a more fundamental and less controversial issue: whether we at least can derive a constitutionally protected interest in personal security from the Ninth Amendment. I will then examine the utility of firearms in protecting such an interest and the threats to individual security that might justify the perception that a meaningful right to personal security may require individual access to firearms.(p.38)

A. Personal Security as a Fundamental Interest

A predominant reason to protect a right to self-defense and personal security is that such an interest may be a prerequisite to exercising and enjoying those rights that are explicitly enumerated. The dead probably have very little use for the First, Fourth and Fifth Amendments.

Writings that have contributed to our political and constitutional tradition confirm the idea that individual security and self-defense are basic and natural human concerns.[118] American colonists viewed self-defense not just as a right but as an obligation.[119] St. George Tucker, whose supplemented edition of Blackstone's Commentaries compared the American Constitution and law to British common law,[120] observed that "[t]he right of self defence is the first law of nature."[121] The corresponding right to arms in the English tradition was expanded in American law.[122]

Other modern writers find support in the work of early nineteenth century commentators[123] and an array of state court decisions.[124] (p.39)Nelson Lund argues: "[i]n liberal theory, the right to self-defense is the most fundamental of all rights--far more basic than the guarantees of free speech, freedom of religion, jury trial, and due process of law."[125] David Caplan presents a selection of early English common law endorsements including some drawing on biblical passages and others derived from the self-defense doctrine in criminal law.[126]

Early Supreme Court jurisprudence provides another endorsement of the constitutional right to individual security. In one case, the Court ruled that "constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance."[127] Some forty years later, in a widely noted dissenting opinion, Justice Brandeis argued passionately in support of an unenumerated, but fundamental, right to privacy that encompassed a right to personal security.[128]

At least one modern commentator has considered several human rights principles incorporated into international law as relevant to determining those rights that the Ninth Amendment protects.[129] The (p.40)United Nations Charter declares that "nothing in the charter shall impair the inherent right of individual or collective self-defense...."[130] The United Nations Universal Declaration of Human Rights also explicitly endorses the right of individual security, stating that "[e]veryone has the right to life, liberty and security of person."[131]

Similar writings considering the inherent right of self-defense abound,[132] bolstered by an array of non-traditional sources. Work in the (p.41)social sciences presents formally what may drive attitudes about self-defense. It has been observed as a rather natural phenomenon that people take steps to protect themselves when their faith in the ability of agencies such as the police to protect them diminishes.[133] Acknowledging the premise that our constitutional structure is grounded in the distrust of government, we might expect citizens to exhibit a continuing interest in acquiring instruments of self-protection. While constitutional questions will not turn on such observations, they partially confirm the proposition that disarmament requires taking a political step--trusting in the competence and benevolence of government--that should make us uncomfortable.

It is useful in comparison to examine some representative statements regarding macro security issues. Oscar Schachter's Self-Defense and the Rule of Law[134] offers a useful point of departure. Schachter describes two schools of thought regarding views of the right of self-defense in the international sphere. The first parallels what I have presented as support for the individual right of self-defense, that self-preservation (p.42)"is a natural right of the state, as of individuals, that could not be abrogated or limited by positive law."[135]

The second is rather remarkable when considered against contemporary American views of the individual right to self-defense. It is the belief in the subordination of law to power when national security is threatened.[136] Schachter presents the remarks of Dean Acheson, former Secretary of State, in a discussion of the legality of the U.S. quarantine of Cuba during the 1962 missile crisis: "[t]he action taken by the United States was, in [Acheson's] view, 'essential to the continuation of [its] preeminent power.' Law, he declared, simply does not deal with such questions of ultimate power.... The survival of states is not a matter of law.'"[137] Although when it has been in our national interest we have endorsed the opposite view,[138] the United States has argued before the International Court of Justice that "the United States alone was in a position to determine the necessity of the 'defense' measures it had taken against Nicaragua...."[139]

On a macro level, issues of security and survival of the state are considered qualitatively different from other issues that might more easily be submitted to the consensus of the community. What is obscured in the analysis of individual interests in security and self-defense is boldly apparent when it is the security of the state itself at issue: an autonomous state's interest in its continued existence is preeminent among its concerns, and measures it takes to ensure its survival will not be subordinated to community limitations.

I suspect many of us are not yet prepared to say that an individual's interest in security is of less importance than the state's. In order to endorse disarmament, we must face directly the conflict between accepted views of the state's interest in security and self-defense and an (p.43)individual's constitutional right to armed personal security. If we perceive government as a means to an end rather than an end in itself, then we should be troubled by the idea that the government's interest in perpetuating itself is more legitimate than the corresponding interest of individual citizens.[140]

The same observation applies to the special provisions made for the security of individuals who rise to power within government. It is doubtful that disarmament would require all government agents to depend on the same collective security resources as private citizens. Certainly, we could posit reasons for permitting certain agents of government to have armed security personnel at their constant disposal or even personal access to firearms. Indeed, it would be difficult to argue that these measures were not justified and necessary.

What is difficult to justify is permitting government agents, whom we ideally characterize as servants, to enjoy a level of security, provided in part by firearms, unavailable to the general population.[141] Such a (p.44)result leads to the conclusion that those in positions of power in government are distinct from servants whose lives are somehow worth more than the lives of citizens. It then follows that our constitutional system is designed to tolerate a tier of elite whose interest in personal security exceeds that of citizens merely because of their positions in government.[142] Our constitutional tradition, based on the concepts of limited government serving the citizenry and legitimate fear of the power vested in government, seems at odds with such conclusions.

It is then possible to view physical security as preeminent among those things necessary to enjoyment of enumerated guarantees, and it is important that we scrutinize the potential role of firearms in protecting that interest.

B. The Utility of Firearms for Personal Security

One might concede that an individual's interest in physical security is recognized generally in the Constitution and particularly by the Ninth Amendment but still resist the idea that it may be pursued by force of arms. One way to justify this position is to deny the utility of firearms as tools for resisting violence.

There is little dispute that firearms, at least in the hands of the police and the military, are useful. When the issue changes to arms in the hands of individual citizens, there is a detectable transformation of (p.45)perception. Suddenly, there is nothing useful or socially beneficial about them. This sentiment is illustrated by Professor Levinson's observation that "it appears almost crazy to protect as a constitutional right something that so clearly results in extraordinary social costs with little, if any, compensating social advantage."[143]

This extraordinary social cost arises from the fact that guns are effective tools for killing people and are used for that purpose. It is, however, an analytical misstep to assume that every use of firearms is at a social cost. Many of us would count the use of a policeman's gun to stop aggression against an innocent victim as a benefit rather than a cost. Some of us would reach the same conclusion about a victim using a gun directly in self-defense. Given the fairly widespread justified, defensive use of firearms in our country, we can at least argue about whether guns are useful security tools.[144]

Some may be inclined to dismiss the possibility of individuals beneficially using tools of violence. The explanation may lie in the conviction that all violence is simply abhorrent and ought never be (p.46)condoned.[145] James Payne made a similar observation in an analysis of macro security issues in terms that parallel the phenomenon at the micro level:

In modern Western culture, the two views of war, the negative and the positive, are not given equal weight. What dominates, especially in literary and academic circles, is the view of war as wasteful and repugnant. There have been moments in the life of a country when fighting--that is, war--has been seen as desirable, but these are hardly noticed and never clearly remembered. What prevails, until practically the moment comes to fight again, is the view of war as evil, as something never willfully chosen by right-thinking leaders.

This one-sided perspective has a broad impact on efforts to study military forces and levels of military preparedness. With the "bad" face of war dominating the picture, military forces are not seen as something a nation might usefully have, as it would have agencies devoted to education or to caring for parks. Instead, military forces are treated as a vice, something the nation ought not to have but which, owing to some obscure appetite, it cannot stop itself from acquiring. In this perspective, all military forces are deplorable, and there is no such thing as a normal, nonalarming level of military preparations.

A typical expression of this view is found in Salvador de Madariaga's classic Disarmament, written in 1929. "Save vice," he declared, "nothing is as wasteful in the world as war and the preparation for it."

....

... Military forces are productive. In the right circumstances, thoughtful, moral individuals will want to have them and will want to use them on behalf of national purposes. For example, when military forces are needed to combat an aggressor bent on destroying a nation and its people, they are certainly doing something very useful indeed. In fact, they are probably carrying on an activity far more productive than that of school teachers or park wardens, for example, for were they to fail in their mission, neither schools nor parks might remain.[146](p.47)

The parallels between Payne's observations[147] and those that can be made about the gun debate are instructive. From the perspective that all violence is abhorrent, we can more easily embrace the assumptions and make the denials required to justify individual disarmament.[148] We can (p.48)reject the possibility that resistance in kind, a concept at the core of police response to violent aggressors, can be an effective response to violent threats; that the threat of retaliation has some impact on the calculations of potential aggressors (including those ostensibly representing the collective will); that collective security measures cannot quell a threat at the very instant it emerges; and that force or the threat of force works to achieve various collective objectives or has a short term impact on human behavior.

Keeping in mind this possible analytical impairment, it is essential to consider the utility of guns not for sporting use, but for protection against violent threats. Although we may not feel comfortable about it, we regularly sanction the use of deadly force against violent aggressors. That agents of government, to whom many would completely entrust their lives, have access to and use of firearms which citizens cannot lawfully purchase is a testament to this fact.[149]

Historically, violence has been an important tool, substantially impacting conflict resolution.[150] This recognition is reflected in the writings of the framers and the works on which much of their political philosophy was grounded. During the ratification debates, Patrick (p.49)Henry wrote: "[g]uard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined."[151]

One facet of the contemporary debate is our expectation about the dynamics of violence. One might presume that the likelihood of violence increases when there is an imbalance of power. The imbalance operates as an incentive for the aggressor to use what he considers a prevailing level of force. Therefore, aggressors will victimize those who are weaker than themselves. This idea directly affects our presumptions about the impact of the free availability of guns in our society.

It may be that much of the random, senseless violence we experience is a result not of too many guns, but of too few in the hands of peaceful citizens. Some random, seemingly knee-jerk violence appears to stem from the expectation that the consequences will be insignificant. One reason is that at the instant of the violent criminal act, even in a world where police protection is generally adequate, police cannot always be present to deter the threat. A related expectation of the aggressor may be that his victim will be basically defenseless and therefore a relatively risk-free target.

For the very reason that many fear them--the ease with which they unleash deadly force--guns equalize power relationships. Individuals generally are more equal in their capabilities to point and shoot than they are in physical attributes of strength, girth or speed. This may mean that a victim facing a single aggressor or multiple aggressors is better off armed, even if his attackers also are armed.

Wendy Brown's example, illustrating why she opposes an armed citizenry, is useful. She describes an encounter in a national park with a pornography-reading, beer-guzzling, Winnebago-driving hunter, who assisted her in starting her stalled car, but who she feared might rape her.[152] She argues that had he and his two friends decided to attack, his gun might have made the difference between her resisting with her "hard won self-defense skills"[153] or succumbing to the attack. Changing the scenario only slightly yields a conclusion at odds with Professor Brown's. In the society she argues is preferable, assume that (p.50)Professor Brown's attacker, so far as firearm's restrictions go, is law-abiding and disarmed. But assuming where the crime of rape is concerned, he and his two friends are not law-abiding, we might wish that Professor Brown possessed a tool that would equalize the power relationship sufficiently to dissuade or stop the rapists.

Even if some or all of the three aggressors are armed and Professor Brown is armed, applying the principle (common in macro security analysis) that increasing the cost of violence decreases its likelihood, Professor Brown would be better off armed than if she and her attackers all were disarmed. In the disarmed scenario, the disincentive to the three rapists is a potential kick or punch. In the armed scenario each has to contemplate the possibility that he will be killed. This raises the cost of aggression and decreases the probability that the attack will occur.

One is not forced to operate purely in the realm of hypotheticals in evaluating this issue. The Mexican experience offers some basis for anticipating whether disarmament means that candidates for victimization will be better off:

The Western country with the highest per capita homicide rate is not the United States, but Mexico, where only the wealthy and the influential are permitted handguns. The per capita Mexican knife homicide rate is three times greater than the American rate for all kinds of homicides. Perhaps Mexico would have more homicides if handguns were available, although criminological evidence indicates that a potential murderer is fully as deadly with a knife as with a gun.[154]

The Mexican experience generates several considerations. The first is whether disarmament will suddenly cause those intent on violent aggression to become peaceful citizens. We can fairly expect that the spark which generates violence will not be extinguished by even successful disarmament.[155] Tendencies toward violence might well continue, with the difference being that the effectiveness of tools used depends on the strength, dexterity or ruthlessness of the user. Under (p.51)those circumstances, the physically weak and the squeamish would be left without tools capable of equalizing the power relationship between them and violent aggressors. This would leave them particularly reliant on government, locked and barred in their homes for their personal security.[156]

I have drawn another example from a conversation sometime ago with a friend. She lives in an affluent area, in a nice home with a sophisticated security system. We discussed her revelation that she was thinking about purchasing a gun. At the core of her concern was "what if some one got in here and got to me before the police arrived."

There were a number of responses: that the probability of such an event was low; that there was a danger that she would shoot someone accidentally; that there was high quality, responsive police protection in the area; and that neighbors were close by. None of the responses answered her question. I suspect that the reason was that an honest answer was very unpleasant. No one was comfortable saying that, absent the means for her resistance, the hypothetical aggressors simply would do whatever they wished until someone came along with the physical means to stop them.

It is possible to consider individual arms useful against threats that range far beyond the robber, rapist or murderer. It is practically de rigueur for Second Amendment scholars to refer to the role of citizens armed with their individual weapons during World War II.[157] A (p.52)recent district court decision also supports the view that individual marksmanship is an important skill even in the nuclear age.[158]

One commentator has argued that the possession of arms by southern blacks during the civil rights movement gave civil rights workers

the necessary confidence to overcome the threats, harassment, burning crosses and sniper shots to which they were frequently subjected. In order to survive and to realize a measurable degree of personal dignity the Southern blacks needed the guns. As a protection, it made it easier to organize and to insist on the exercise of their constitutional rights to vote and speak.[159]

One can roundly criticize the presumption, easy to find in modern commentary,[160] that the immense power wielded by the state renders individual arms useless in resisting abuse of collective power.[161] There (p.53)are numerous contemporary examples that illustrate the continuing utility of individual arms against such power.[162]

C. Threats

Recognizing the flexible and evolving nature of the Constitution, it is important to consider whether real threats now exist against which individual arms properly might be used. It is possible, taking a decidedly urban view of America, to assume that the utility of individual firearms has been eliminated, as the United States no longer shares a frontier with aboriginal inhabitants who are resisting incursions violently. Nonetheless, there are people, particularly in rural areas, who view guns as important tools.[163] This daily practical utility aside, it may (p.54)be more important to consider whether the individual exposure to violent threats that impacted the eighteenth and nineteenth century view of individual arms ownership exists today.

On the national level, we have elevated the process of predicting future threats to high science.[164] We aim to employ policy makers who have "a vivid sense of the art of the possible."[165] Serious people recognize that "[t]he game of 'what if' is very appropriate"[166] to evaluating "the potentially hostile elements in the world around us"[167] as they affect security issues of national concern.

There is widespread agreement that on a national level we ought to be prepared to repel threats to our security in kind if other options fail. Many people adopt the opposite stance when considering the issue on an individual level. One can find few direct discussion of potential sources of threats and mechanisms for confronting them on an individual level, other than in off-beat publications, such as American Survival Guide and specialty gun magazines.[168]

We would be remiss if we endorsed disarmament without considering whether individuals should have the opportunity to employ the same structure of security analysis utilized by government. This is especially true in light of the lack of individual control over collective security measures and the practical impossibility that collective measures will be tailored to the needs of individuals. As Barry Buzan has noted,[169] "people represent, in one sense, the irreducible basic unit to which the concept of security can be applied. Although the traditional emphasis in International Relations has been on the security of collective units, particularly states, individuals can be analyzed in the same way."[170] The wide reaching model of assessing potential threats, central (p.55)to national security analysis, offers the most generous and inclusive options for evaluating threats that might require the use of individual firearms in response.[171]

It is not difficult to set out a fairly long list of circumstances in which the collective security preparations will be incapable of meeting the needs and concerns of individuals.[172] The possibility of conventional warfare on American soil is illustrative. While it is tempting to dismiss this as unlikely, we should wonder whether it is simple arrogance that permits us to believe we can exert force throughout the globe and expect that we are, and somehow always will be, immune from similar efforts by others.

During the Gulf War, Saddam Hussein pledged to make the whole world a battlefield. One may speculate on the exposure of our citizens if efforts were made to bring the war home to America. Surely the federal government made efforts to secure public offices, utility assets and the like, but an effort to bring the conflict home to complacent, comfortable Americans might well have involved more than attacks on well-guarded public assets. It might have focused on individual citizens in the form of random violent attacks, hostage taking or other similar activity. We can at least argue about the usefulness of firearms in the hands of citizens under those circumstances.

Federal lawmakers have recognized the potential inadequacy of organized armed forces. The Militia Act[173] declares a broad category of Americans to be members of the federal militia. These citizens are to operate as a substitute for the army and national guard while those forces are deployed or engaged elsewhere. If nothing else, the Act (p.56)validates the possibility of community controlled security forces being inadequate. This makes problematic the argument that individuals ought to rely exclusively on those forces as barriers against violent aggression.

An example from World War II illustrates in detail how individual arms might be useful in thwarting domestic threats while the armed forces are deployed elsewhere. The U.S. Home Defense Forces Study describes instances where militia-men in Maryland and Virginia were mobilized to detect and repel invasion forays, parachute raids and/or sabotage.[174] These examples may relate more directly to the Second Amendment's militia concept. As discussed earlier,[175] this analysis focuses predominantly on individual rather than community interests, but it is still possible that certain of the armed militia's goals may be achieved through the actions of armed individuals confronting threats to their individual and, coincidentally, community interests.[176]

Other threats exist on a more personal level. Considering the high probability women have of being assaulted during their lives,[177] they may want the option of responding forcefully to such attacks. Alternatively, there have been notable instances in our history when the lives of individuals were devastated by collective panic. The internment of Japanese-Americans during World War II is one such instance. Many in the mainstream might consider the alternative of armed resistance by such individuals useless and counterproductive. From the perspective of the victim, the choice between submitting to such grave depredations or fighting, even without the hope of prevailing, might weigh out differently. Certainly, we would expect that any one of the framers who found himself suddenly in the circumstances faced by many Japanese internees would have chosen to fight and die rather than submit his life and property to such an unrestrained exercise of collective power. Indeed, the abuses that were used to rationalize the colonies' revolt against England pale in comparison.

Our popular literature offers examples of a different stripe. In the story of his life as a teamster and confidant of Jimmy Hoffa, Joe Franco stated, "I heard Jimmy telling the members that he would never allow a (p.57)black man on the highways as an over the road driver.... If a black man ever went out on the highways in those days pulling an eighteen wheeler, he would probably have got killed somewhere between here and Florida."[178] Former Congressman Claude Pepper recalled in his autobiography a situation in 1944, which provides support for an individual right to armed self defense:[179]

The race issue is a factor in nearly all elections today, but it is nothing like it was in earlier years, including 1944.... If I needed a reminder of how deep the hatred of many whites toward blacks was in that year, I received one on this trip to Florida.... In my diary I noted: "There was [a] feeling against the governor for not letting the Negroes fall into white hands. The local people said there had never been a trial of a Negro for the rape of a white woman (all lynched) and they didn't want a trial now...."[180]

Another example illustrates that society's security apparatus may itself be a threat to individual security. Rodney Stark's Police Riots[181] (p.58)details various episodes which give some Americans reason to believe they have had and may still have much to fear from those charged with providing collective security. The richly detailed work of Professors Cottrol and Diamond further illustrates how threat assessment by black Americans might yield a result at odds with disarmament.[182]

Claude Pepper suggests another danger: "Roosevelt's first hundred days in office, I am convinced, saved this country from collapse and preserved our form of government."[183] If we consider the collapse of our government as a possibility, then the security measures the government currently provides cannot justify disarmament. Self help and self protection have been a cornerstone of our civil defense system:

Civil defense as presently conceived by Federal planning authorities rests basically upon the principle of self-protection by the individuals, group, and community. The individual should be trained to protect himself when an emergency arises. The family should work together as a unit in meeting its own problems and, in the same manner, the community should care for its needs as far as possible before requesting outside assistance.[184]

In the aftermath of various types of disasters the demands of the surviving population might well outstrip available resources.[185](p.59)

There is in our collective defense analysis an extreme importance placed on protecting the infrastructure.[186] Given this emphasis, we should wonder whether under some circumstances the decision will be made, in a mode not subject to public debate,[187] that the security of individuals must be sacrificed in order to protect the infrastructure. Under such circumstances total reliance on collective mechanisms would be misplaced.

Ultimately, the debate is about the appropriate balance between individual security and the possibility of abuse of the mechanisms that contribute to that security. There can be disagreement about that balance; however, it is a mistake to assume that it should be struck with reference only to the state of the world at this particular moment.[188](p.60)

It is not clear whether the threats facing citizens today are more or less substantial than those which faced eighteenth and nineteenth century Americans. It is possible to think the quantum of threats is lesser today. Even so, we might conclude that the threats we currently face are still too great to force the conclusion that individual arms are arcane, useless mechanisms with no proper role in modern America, or that it is acceptable to relegate individuals to spectators in conflicts, where their lives hang in the balance.

VII. Armed Citizens--Disarmed Citizens: Which Danger Should We Choose?

There are costs and dangers attached both to citizen disarmament and to a policy of open access to firearms.[189] The loss of the option of armed self-defense and criminal misuse of firearms can both result in the death of innocent victims. In an armed society, the danger is that guns will be criminally or negligently abused. In a disarmed society, the danger is that criminally possessed firearms or alternative weapons will be used by aggressors against disarmed citizens without fear of recourse or, alternatively, that violent threats to disarmed citizens will more easily (p.61)emerge from a unilaterally armed government.[190] The principles at the foundation of a meaningful Ninth Amendment help us choose between the respective dangers of an armed and disarmed society.[191]

Perhaps the essential conflict at the core of the Ninth Amendment is the tension between restricting individual autonomy for the good of the collective and preserving the essential aspects of personal liberty. Professor Barnett's foreword to a recent Ninth Amendment symposium characterizes this conflict well:

A law that was within the substantive jurisdiction of Congress and employed proper formal means might still be unconstitutional if it violates the "rights of the people." Such a constraint assumes, of course, that "[i]ndividuals have rights, and there are things no person or group may do to them (without violating their rights)," an assumption that is in harmony with the [prescription of the Declaration of Independence that (p.62)all men are endowed with certain unalienable rights including Life, Liberty and the pursuit of Happiness]. Such a declaration of rights need not be religiously based. Instead it may rest in part on a view that the respect for certain individual rights is a prerequisite for achieving the common good; that no matter how desirable its appearance, a measure that violated a proper conception of these rights would invariably detract from the common good; that a respect for a proper conception of individual rights is the only way to achieve in practice a good that is truly common to all; that enforcing a proper conception of individual rights was within the competence of and particularly appropriate for the judicial branch; and, therefore, that judicial review on this ground would enhance the substantive legitimacy of resulting legislation.[192]

This suggests what may be fundamental in a system of limited government: the Constitution generally and the Ninth Amendment in particular establish that there are some things individuals cannot be required to sacrifice for collective interests.[193] The search for these things might begin with the idea that there is some sort of hierarchy of human concerns that would help identify those interests which are exempt from collective encroachment.

A preeminent human interest is the continuation of one's life. There is a concomitant interest in some mechanism through which threats to one's life will be averted. One can accept these as important interests and still deny that they establish the individual ownership of firearms as a concern of the same magnitude, but doing so requires certain assumptions. First, one might assume that a violent individual threat justifying an in kind response never will be experienced. Second, one might assume that our collective security mechanisms always will be present and effective in deterring threats. Third, one may be willing to accept the costs of disarmament in the form of more successful aggression against disarmed victims as the price of testing whether a disarmed citizenry ultimately will enhance individual security.[194](p.63)

The first two assumptions have been addressed earlier and seem difficult to support in light of our daily experience.[195] The third seems to be the basis upon which any serious advocacy of individual disarmament must rest; however, if an acceptable balance between individual liberty and collective interests is to be maintained, the validity of the third assumption becomes questionable.

Arguably, disarmament would require that some of us give up our lives to assist in the collective experiment. If we accept this cost, then it is hard to imagine any other circumstances where individual interests could not be sacrificed to further collective concerns. That may be where we stand. If it is, then we should express it openly and admit that we have departed substantially from the rhetoric of sacrosanct personal liberty and inalienable human rights that we project as an example to the rest of the world and resurrect in our self-congratulatory rituals.

We can reach the decision to choose the dangers of an armed society through a slightly different route. Our Constitution was designed less to facilitate solutions to short term political and social problems and more to protect against significant structural threats to our democratic system.[196] If we believe that significant abuse of collective power is more likely to occur against a disarmed citizenry, then the danger of disarmament is a structural constitutional threat. (The valiant but crushed efforts of pro-democracy protesters in Tiananmen Square give us a basis on which to evaluate this question.) On the other side of the balance is our immediate, short-term concern about gun related crime. Considering the full damage capacity of each alternative, a disarmed citizenry looms as much more substantial. If from this balance we still (p.64)choose disarmament, then we may be permitting current political exigency to erode a structural constitutional support.[197]

VIII. A Natural Rights Perspective: The Fundamental Nature of Arms

A more sparsely endorsed view of the Ninth Amendment contends that it protects certain identifiable natural rights that always have and always will exist.[198] Several writers have advocated this view, pointing out that decisions of the Marshall Court and early state courts illustrate that the judiciary was obliged to enforce natural law.[199] Professor Moore has compiled a list of decisions in which, although the Ninth Amendment is not explicitly mentioned, the Court "enunciates that human beings have natural rights and that these natural rights do not emanate from the Constitution but arise from the very nature of mankind."[200]

For those who have suffered at the hands of the government, the sentiment enunciated by the Supreme Court in the latter part of the nineteenth century holds some appeal:

It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such (p.65)rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is nonetheless a despotism.[201]

Modern commentators have criticized the natural rights view as being unworkable. They argue that in our more heterogeneous and complex society, there is much less opportunity for agreement on what these natural rights are,[202] and there is no principled basis on which the judiciary can support its particular selection.[203] The fear is that a whole panoply of "natural rights" might spring from the courts, unrestrained by observable standards in the text of the Constitution. It may be this fear that leads those who do not ignore the Ninth Amendment to endorse what I have called the "deep structures" model.[204]

As a practical matter, some may consider the natural rights vision of the Ninth Amendment unsatisfactory for a separate reason. If construed by examining only what the framers considered to be natural rights, the Ninth Amendment appears limited in its capacity to support rights that impact many of our contemporary debates. Stated more cynically, this view might give little support to emerging rights that veer substantially from our constitutional traditions. Notwithstanding these difficulties, and because of the limited scope of the natural rights vision, it is instructive to evaluate the individual right to arms from this viewpoint.

The intellectuals that influenced the thought of the revolutionary period provide a broad base of support. The works of Locke[205] and (p.66)Blackstone[206] explicitly support the absolute and natural right of freemen to bear arms in self-defense. Although subscribing to a different philosophy,[207] Thomas Hobbes advocated a right to take up arms in self-defense as "the [sum] of the Right of Nature."[208] The vision is also reflected in English common law.[209] These ideas can be traced back to the writings of ancient Roman philosophers, whose work (p.67)"clearly influenced ... the architects of the Bill of Rights."[210] One contemporary writer points out that a thirteenth century English scholar grounded a right to arms for self-defense in biblical scripture.[211]

The idea of discernable natural rights is not foreign to modern thinkers. One state court decision describes the right to armed self-defense as existing "[f]rom time immemorial."[212] Perhaps belying the notion that there is no group of natural human rights that we all might agree on, the United Nations Charter declares "nothing in the charter shall impair the inherent right of individual or collective self-defense."[213]

I have included here only a sampling of the support for viewing arms for self-defense as a natural right. The wide range of support in part emanates from a fundamental and universal human interest in self-preservation. One can acknowledge this interest and still, considering the interests of the community as a whole, reject an individual right to arms.

The natural law structure, however, takes an individualist focus and considers there to be no community interest superior to certain natural individual rights. Under a natural rights view of the Ninth Amendment, then, we may find it difficult to reject an individual right to arms and still conclude that the Amendment protects rights derived from human interests less substantial than self-preservation.

IX. We May Recognize a Ninth Amendment Right Only When We Tread On It: Indications About Individual Arms

The opinions of lawyers, judges, and legal scholars may have only a superficial impact on the ultimate influence of the Ninth Amendment. (p.68)Because of its open-endedness[214] and arguable natural law foundations,[215] the Ninth Amendment may simply confirm certain truths already presumed by citizens. Perhaps in spite of what Congress decrees, the Supreme Court says, or the tide of popular will dictates, there are certain rights individuals can identify by looking into the core of their being. It may be sufficient if that search tells them that it is ludicrous to rely on government to protect them and to accept the danger of that protection arriving too late as the necessary price for order.

Certain rights, as many commentators have noted, withstand the force of popular and political opposition. Hamilton, in response to the Tory argument that New Yorkers had no charter rights, because they had no charter, declared: "[t]he Sacred Rights of Mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole record of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power."[216] Some measure of this sentiment has surfaced in contemporary Ninth Amendment commentary. Professor Grey, in his defense of an unwritten constitution, urges that an ideal picture of a republic would not rely on elderly men in black robes or experts but rather on ordinary citizens to make basic decisions about public morality and justice.[217]

Professor Sager assists the argument. He contends that "[t]he unenumerated rights memorialized by the Ninth Amendment might be just what they seem to be--personal constitutional rights which enjoy the status of positive law--yet not be enforceable by the judiciary."[218] (p.69)Hobbes argued that the right to defense of self cannot be surrendered; it is indefeasible. From this sentiment, one might begin to understand statements by some gun owners concerning increasing restrictions on access to firearms.[219] One doubts that they have read Hobbes extensively. Perhaps his description of arms as a natural right is telling in that people do not have to read Hobbes to conclude that there is something fundamental about owning firearms to defend their lives.

Maybe it is the citizenry itself that must validate unenumerated rights. Perhaps these rights can only be truly identified when their violation generates such resistance that government is forced to stand down. The question may then settle on whether possession of arms is an individual interest that large numbers of ordinary citizens simply will not sacrifice regardless of legislative commands.

There is a small but growing body of information that moves toward answering this question. I hope to avoid the statistical battle that plagues the popular gun debate but the broad implications of available data tells us something about how an individual right to arms fits within an analysis which emphasizes the extrajudicial impact of the Ninth Amendment. The indications are that many gun owners are resisting or refusing to comply with registration and confiscation efforts that apply to firearms already in their possession. Several studies indicate that "the rate of defiance of Chicago's registration law is over two-thirds. In Cleveland the rate of compliance with their handgun registration law is estimated at less than 12 percent."[220] The efforts of several states to ban (p.70)the possession of certain high capacity semiautomatic rifles has produced similar rates of noncompliance.[221] Many people who embrace the bumper sticker sentiment "you can take my gun when you pry my cold dead fingers from around it," are apparently serious. Such visceral oppositional rhetoric and the trend of defiance to confiscatory legislation may be signals of protected Ninth Amendment interests.

X. The Influence of Elitism and Cultural Bias on the Firearms Debate

A. Elitism

Although the reality may be otherwise, our political and constitutional rhetoric presumes we proceed on an egalitarian basis. At least in our collective statements and guiding public documents, we express disdain toward elitist currents that may inevitably influence our social and political arrangements. Therefore, fairly or not, I presume that we would be disturbed to find elitism as one of the forces propelling disarmament advocacy.

The starting point is the willingness of some advocates to place the means for exerting force solely in the hands of government. We might ask whether access to weapons by the social/political elite would be greater than that of the average citizen. The politically powerful might be assigned armed security escorts from the public payroll or enjoy the benefit of plans for extravagant measures to be taken in the event of large scale threats.[222] We also should consider whether general (p.71)disarmament would eliminate access by the wealthy to licensed, armed security services. This type of regulated armed force might stand as an exception to general commands of disarmament. The problem is that celebrity status is not a prerequisite to victimization. The victims of violent aggression are predominantly ordinary citizens who have access only to generic police services. Drawing an inference from the experiences of the less fortunate of us in receiving other publicly administered resources, it is reasonable to expect that those same individuals will receive the very worst of the publicly administered security services.[223]

The general fairness of providing less than superlative public services in the area of public charity might be debated. It is an altogether different matter, and a situation much harder to justify, where individuals are stripped of their best mechanisms of self-protection,[224] forced to rely on collective resources they have reasons to mistrust, and then are relegated to inadequate, inefficient, or malevolent administration of those resources.[225]

Unless we are prepared to administer publicly controlled security resources on a completely equal basis, we may be moving in a direction (p.72)that is repugnant to our social and political rhetoric. Perhaps we really do believe that some lives are more important than others, but if we acknowledge this, then we may cut away at the foundation of our political system. This dilemma exposes the importance of individual access to arms and, concurrently, the latent currents of elitism that should make us uncomfortable when we consider how disarmament would be implemented.

One's willingness to surrender firearms to government probably depends on one's general perception of the accountability and responsiveness of government. The social, political, and economic elite may have realistic expectations of substantially impacting public policy, and they are the least likely to fear collective power turned against them. They might fairly consider government to be trustworthy, benevolent, and directed in the pursuit of their interests. For those with historic and continuing grievances against the government,[226] however, reliance on the good-faith administration of collective security resources may be an unwise leap of faith.

Other elitist or classist currents in the debate are more disparate. Wendy Brown's response to Sanford Levinson is one instance of stereotyping gun owners and dismissing any arguments supporting individual firearms ownership by personifying gun owners or advocates in condescending, pejorative terms.[227] A measure of elitism, or perhaps (p.73)hypocrisy, is exposed by one Second Amendment commentator who lists notable and influential gun prohibition advocates who themselves have obtained rare New York City permits to carry a handgun.[228]

Another aspect of the phenomenon arises as a corollary to an observation made by Judge Bork in assessing the uneven development of First Amendment jurisprudence as compared with other amendments.[229] Bork argues that the First Amendment has received an inordinate amount of attention because of its predominant importance to the intellectual elite, who shape constitutional jurisprudence and public policy.[230] An individual right to arms probably ranks fairly low among (p.74)the hierarchy of concerns of the intellectual elite.[231] It is, therefore, not surprising to find support for the right coming from outside the mainstream and a paucity of Supreme Court decisions on the issue.

In the mid 1970's, some charged that recommendations made by the Eisenhower Commission were elitist. The commission's recommendation to limit access to individual arms was considered by one critic to "reflect the commission's privileged white intellectual membership and their elitist disregard for those who cannot afford to move to 'safe' neighborhoods or the high security apartment buildings."[232]

If we acknowledge Sheldon Wolin's indictment that every one of our primary institutions is "fundamentally elitist in character,"[233] then we should not be surprised to find currents of elitism influencing the debate over individual arms. If, however, we cling to the mast of egalitarianism, then these currents should give us reason to pause as the debate develops.

B. Cultural bias

A surprisingly unchallenged theme runs throughout the traditional Second Amendment debate. It is illustrated in this observation:

While our government has quite a good record of exerting power without abusing it, the deterrent effect of an armed citizenry is one little recognized factor that may have contributed to this. The right of citizens to bear arms is just one more guarantee against tyranny which now appears remote in America, but which historically had proved always to be possible.[234]

The experience of minorities in this country offers a broad base for rejecting the sentiment that "our government has had a good record of exerting power without abusing it."[235] It might be difficult for many in the majority to imagine circumstances of governmental abuse of power (p.75)so severe as to justify armed resistance. From a minority perspective such abuse of power is much easier to contemplate, and the idea that police agencies make self-help superfluous seems rather quaint.

The point can be made another way. There is now some agreement that slavery and de jure racism against blacks and certain collective efforts against native Americans were shameful, but the tragedy and pain of these things has not influenced our national culture as deeply as one might expect. If our dominant culture were shaped less by the conquerors and more by the conquered, American society might have a vastly different view about collective power and the dangers of despotism and oppression within the American constitutional design. From this perspective, it is easier to believe that our society might experience vast changes, including unpleasant ones. For those who still live under the cloud of government-sponsored racism, the proposition that Americans have not experienced substantial abuses of collective power is laughable. A minority perspective may foster a deeper appreciation of the looming possibility of a ruthless exertion of the collective will.[236]

XI. Lingering Concerns about Disarmament and Firearms Regulation

A. The Dangers During and Beyond the Period of Vigorous Disarmament Efforts.

Professor Levinson suggested that we should open this debate to different voices, including those whose views might be discounted because of their personal characteristics. It is then appropriate to treat several arguments raised in part in unabashedly pro-gun venues. They directly attack the wisdom of disarmament on the premise that it is unworkable and disadvantages those it is intended to protect. The first argument assumes the effort toward general disarmament is undertaken and argues that the more compliant citizens will be at a dangerous disadvantage until total disarmament (assuming this is possible) has been achieved. The concern within this scenario is a variation on the "only outlaws will have guns" theme. The argument assumes that of the approximately 160 million guns owned by individuals in this (p.76)country,[237] some would remain in private hands, and a black market in guns would develop. This might place compliant victims at a disadvantage against non-compliant aggressors, who generally would expect to encounter unarmed targets. This argument has precursors in eighteenth century America. Robert Shalhope notes for example Thomas Paine's comment that "the peaceable part of mankind will be continually overrun by the vile and abandoned, while they neglect the means of self defence."[238]

Don Kates points out Cesare Beccaria's eloquent rendition of the same position.

False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty--so dear to men, so dear to the enlightened legislator--and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.[239](p.77)

There is a separate aspect to this analysis that rejects a fundamental assumption of disarmament advocacy. It suggests that disarmament simply is not feasible and criticizes the tacit assumption that after some interim period of serious enforcement efforts, a virtually disarmed and safer society will exist. Disarmament advocacy must assume that once legitimate retail sales of guns are prohibited, guns will be available only in limited numbers through illegal importation or as illegal leftovers from the pre-disarmament period. The reality is that banning firearms is more like banning wheels than banning cars.[240] If our target truly is firearms generally, rather than a few chosen models, then we should recognize that the technology literally is centuries old.[241] It may be a misstep to assume that prohibiting legitimate commercial manufacture of such weapons will make them disappear.

B. Dubious Logic: What Criminals Choose

One thing that contributes to perceptions that general disarmament is the ultimate result even of current gun control efforts is the rationale behind them. The primary focus has been on restricting access to the (p.78)guns supposedly favored by criminals.[242] The difficulty is that there is no reason to believe that criminals will limit themselves to particular types of weapons. It is likely that those intent on aggression will use whatever tools are available and will not be thwarted because their weapon of choice is difficult to obtain.

Without much criticism of the approach, we have started to identify and regulate "bad" guns. The approach seems strained. Ultimately, we are concerned about guns because they can be used to kill people. This capability is inherent in every gun, and it exposes the absurd notion that we are going to ban only the bad ones.[243]

A separate consideration is whether certain of our problems stem from the presence or availability of particular objects. In a debate where we consider the elimination of a substance or object, it is proper that we evaluate not just the impact of abuse of that item, but also the level of that abuse relative to its overall presence and appropriate use. It is useful, then, to consider the level of abuse of firearms relative to their total numbers. In a 1982 article describing a legislative effort to control handgun sales, Senator Edward Kennedy offered two statistics that I will presume to be uncontroversial. He noted that there were upwards of 164 million firearms in private hands in America.[244] He also indicated, using information from 1979, that there were roughly 13,000 murders and 147,000 aggravated assaults using firearms. These figures yield a (p.79)rate of abuse of firearms in committing murder of 0.0000625% and for aggravated assault of 0.0009188%.[245]

It is not my aim to argue that these rates of abuse settle the argument, and one might strongly criticize an effort to relegate the loss of innocent lives to cold statistics. But we can reasonably consider rates of abuse in a debate where one alternative is to deem the mere existence of certain instruments as a predominant cause of a problem. Whether we admit it or not, we often make similar choices about societal costs. We plainly do not move directly from the observation that an object or practice causes death or suffering to the conclusion to ban it.[246] If we believe that all activity has risks and costs, and that some segment of our population will abuse almost anything, then it seems essential that we consider levels of abuse prior to our public decisions to eliminate access to guns, alcohol, tobacco, automobiles or anything else.[247](p.80)

XII. Conclusion and an Invitation to a Revealing Comparison

The Ninth Amendment has been suggested as support for a right to engage in sodomy, a right to wear long hair, protection against imprisonment in maximum security, a right to transport lewd materials in interstate commerce, a right to a h