The point of the 9th is very slightly similar to the point of the milita clause. Not very similar in that the militia clause is a justification, while the 9th is a general principle, but the same in that neither provides any specific legal prohibition or mandate. The actual legal set of prohibitions and requirements on the government and constitutional protections of rights for individuals would be the same without the 9th and also without the militia clause
Note it does not say "that they are not to be denied" it says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (emphasis added)
In other words it saying the fact that a right isn't mentioned shouldn't be taken to mean its ok to run roughshod over it, if its truly and properly a right. But it doesn't say such claimed rights can't or shouldn't be denied (they can be considered illegitimate and not a right), or that they are protected by the constitution.
Apparently the founders were concerned about the possibility that enumerating certain rights would cause people to argue that other claims of rights, that were not enumerated, were thus illegitimate, and not something that should be entertained. If a legitimate claim of right is put forth it should not be dismissed because it isn't protected by the constitution, but to be protected by the constitution an amendment would be required. Alternatively it could be protected by legislation, or less solidly by executive forbearance (were the executive has the power and now legal prohibition to act but it refrains from acting in a way that would infringe on the right), or perhaps under certain circumstances by the court applying the legal principles of equity.
I claim an inalienable right to sing off-key in the shower. If some legislature were inane enough or mean spirited enough to decree otherwise, I would expect to prevail in court.
Just like your right not to buy health insurance? Or Roscoe Filburn's right to grow wheat on his own farm, not for sale inter-state or even intra-state, without federal government interference?*
To the extent you would prevail it would not be because of a specific right to sing off key in the shower but because of
1 - The 1st amendment (combined with the 14th and the legal doctrine of incorporation derived from it if its a state or local prosecution or nonprosecutorial effort to prevent your singing)
2 - The limits on government power. Esp. on federal power in the constitution. If the feds were trying to prosecute you the 10th would be relevant, less so the 9th.
* - Both cases of #2 above. The courts didn't allow the government to violate a directly protected constitutional right, but they allowed the federal government to excede its constitutional limitations. If it had been a state government doing so, then as bad as the policy might be, it wouldn't have been unconstitutional. The 14th incorported enumerated rights to also apply against the states, but it didn't copy over all the constitutional limitations on federal power to also be limits on the states. |
