- What are unenumerated rights?
- How do the 9tn and 10th Amendments differ?
- Discuss the current SCOTUS case - which rule wins, the right to carry a gun (2nd Amdt) into a shop, or the right to exclude things like guns from my private property?
- John Doe brings a dog into a restaurant, violating local ordinance. He argues that doing so, is an unenumerated right under the 9th Amendment. He finds no laws vintage 1790 against bringing dogs into taverns, thus establishing an Unenumerated Right.
- You've discussed that John Doe's position should lose; Unenumerated Rights don't multiply willy-nilly. But 3 conservative justices side with Doe and in favor of Unenumerated Rights to be retained by citizens. Discuss what the 3 conservative justices wrote.
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Related to the USA Bill of Rights, what is the remark that other rights not enumerated still belong to the peope.
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That remark is the Ninth Amendment to the U.S. Constitution.
The exact text is:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In plain English, it says: just because some rights are listed doesn’t mean the people don’t have others as well.
A bit of context that may interest you:
The Ninth Amendment was added to address a concern raised during ratification: listing rights might imply that unlisted rights didn’t exist.
James Madison included it as a kind of anti-loophole clause—a warning not to treat the Bill of Rights as exhaustive.
It has been cited (sometimes obliquely) in Supreme Court reasoning about privacy, bodily autonomy, and unenumerated liberties, though courts have often been cautious about relying on it directly.
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Compare 9th and 10th rights.
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Ninth vs. Tenth Amendment (concise):
Ninth Amendment:
Protects unenumerated individual rights.
→ People have rights beyond those listed in the Constitution.Tenth Amendment:
Reserves powers not delegated to the federal government.
→ Powers go to the states or the people.
Shorthand:
Ninth = rights of the people
Tenth = powers of government
Here’s the concise way to frame what’s really at stake:
1. The doctrinal clash
The case pits Second Amendment public-carry rights against private property exclusion rights.
Historically, U.S. law treats property owners’ right to set conditions of entry as fundamental—you may enter on my terms, or not at all.
2. Why the race analogy doesn’t hold (legally)
A gun ban is a conduct-based condition (“no weapons inside”).
A racial ban is status-based discrimination, now prohibited by post-Civil War constitutional amendments and civil-rights statutes.
Courts have long allowed property owners to regulate what you bring or do, but not who you are.
3. The SCOTUS tension
Some Justices appear to be treating the Second Amendment as a trump card that follows the person onto private land unless the owner affirmatively opts out.
That is a sharp break from traditional property law, where exclusion is the default.
4. The historical trap
Under Bruen, everything collapses into “what existed in 1791/1799?”
That leads to strained debates about whether 18th-century taverns, churches, or shops posted “no guns” rules—an evidentiary rabbit hole that risks freezing modern governance into selective antiquarianism.
5. The deeper issue
If the Court weakens private exclusion rights here, it quietly reorders constitutional hierarchy:
elevating an enumerated right (2A)
over an unenumerated but deeply rooted one (property control, Ninth Amendment territory).
Bottom line:
This isn’t really about guns vs. shops. It’s about whether constitutional rights attach to people everywhere or whether private property remains a rights-filtering boundary. The latter has been the American baseline—until now.
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I have a restaurant, and my city bans animals (except seeing eye dogs) in restaurants.
John Doe has a dog and brings it into my restaurant. he argues there were no known laws against dogs in restaurants in 1799, therefore, it is reasonable that his right to bring in a dog is one of the Unenumerated Rights of the 9th amendment.
Discuss concisely as this has now reached SCOTUS.
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Concise analysis: why the Ninth Amendment claim fails
Category error (rights vs. regulation).
The Ninth Amendment protects unenumerated individual liberties; it does not constitutionalize every unregulated activity from 1799. Bringing a dog into a restaurant is conduct subject to regulation, not a fundamental liberty.Police power baseline.
Health and safety rules (animals in food establishments) sit squarely within state and local police powers, long recognized before and after ratification. Courts do not require Founding-era analogues for routine public-health regulations.Property rights trump the claim.
Even absent a city rule, the owner’s right to set conditions of entry defeats any asserted Ninth-Amendment “right” to bring animals onto private property.Why “no 1799 law” doesn’t help.
Many modern regulations (sanitation codes, refrigeration, fire exits) lacked 18th-century counterparts. The Constitution does not freeze regulation to historical silence; absence of regulation ≠ constitutional right.Standard of review.
Such rules get rational-basis review, which they easily satisfy (food safety, hygiene). The Ninth Amendment does not elevate them to strict scrutiny.
Bottom line:
The Ninth Amendment prevents denial of genuine liberties, not the creation of new ones by historical accident. A claimed right to bring a dog into a restaurant fails against police powers and private property rights, regardless of 1799 practice.
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3 conservative justices side with the dog owner.
Briefly describe their position (supporting the dog owners implicit right claim).
These guys sit on the SCOTUS bench and you and I don't.
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Their position, stated in the strongest terms:
The three Justices would argue that the Constitution presumes liberty unless a restriction is clearly justified, and that the Ninth Amendment forbids courts from dismissing unenumerated rights simply because they feel trivial or modern. From that premise:
Liberty-first baseline.
Individuals retain a broad residual freedom of movement and association, including how they travel and what they bring with them, unless the Constitution clearly allows government to prohibit it.Historical silence cuts against regulation.
The absence of Founding-era prohibitions on animals in public accommodations suggests such conduct was understood as within ordinary liberty, not something needing affirmative permission.Skepticism of modern police power creep.
They would warn that allowing governments to label any preference “public health” risks eroding unenumerated rights by accretion, exactly what the Ninth Amendment was meant to prevent.Property rights not absolute when open to the public.
Once a business opens itself as a public accommodation, the owner’s exclusion rights may yield to individual liberties unless a restriction is narrowly and historically grounded.Judicial humility (as they see it).
Courts should not rank which liberties are “important enough” to count. If the Constitution says others retained by the people, judges should not prune that category based on taste or custom.
In short:
They are not saying dogs are constitutionally special. They are saying liberty is, and that courts should be extremely cautious before declaring everyday freedoms outside constitutional concern simply because modern regulators disapprove of them.
For example, if I give a plumber permission to work in my home does he have a 2A right to also conceal a gun. Give air time to the conservatives and originalists, even if they are a minority.
Here is a clean, doctrinally precise way to separate the scenarios, with fair airtime to the conservative/originalist position.
1. Local regulation banning guns in shops (government action)
Core issue: Second Amendment vs. state police power.
This is the strongest case for the gun owner.
Under Bruen, the government must show a historical analogue (1791/1868) for banning arms in comparable “sensitive places.”
Conservatives argue:
Retail shops and restaurants are not historically sensitive places (unlike courthouses or polling places).
A blanket ban converts the 2A into a hollow right usable only on sidewalks.
Liberals respond:
States historically regulated arms in populated areas.
Public safety is a classic police power.
Key point:
This is a constitutional challenge to government action, squarely within SCOTUS’s comfort zone.
2. No local regulation; private shop posts “no guns” sign
Core issue: Second Amendment vs. private property rights.
This is a much harder case for the gun owner.
Traditional rule: the Constitution restrains the state, not private owners.
Property owners historically control conditions of entry.
Conservative/originalist argument (minority but serious):
When a business opens as a public accommodation, exclusion rights are attenuated.
If the state enforces trespass laws to back up gun bans, the state is entangling itself with private suppression of a constitutional right.
Analogy: Marsh v. Alabama (company town logic).
Counter (likely majority):
Owning property open to the public ≠ becoming the state.
The Second Amendment does not create a right to remain armed on someone else’s land.
Key distinction:
Here the burden is owner-imposed, not state-imposed.
3. “No guns” notice in a business open to the public vs. in a private home
A. Public-facing business
Conservatives argue:
Opening to the public creates a quasi-public space.
Default rule should favor carry unless the owner opts out clearly.
Moderates/liberals argue:
Opt-out is the exercise of property rights.
No historical tradition of forced armed access to private shops.
B. Private home (plumber example)
This is where even the strongest originalists largely concede defeat.
A homeowner’s right to exclude is near-absolute.
At common law, the owner controlled arms, behavior, and presence inside the home.
No serious historical evidence supports a right to carry arms inside another’s dwelling over objection.
Result:
The plumber has no 2A right to bring a concealed weapon into your home.
4. Why these distinctions matter
The Justices are really sorting three constitutional hierarchies:
Government bans → strict scrutiny via history (Bruen)
Private commercial property → unresolved tension
Private homes → property rights dominate
Even conservative Justices are unlikely to collapse all three into a single “2A follows you everywhere” rule—that would radically unsettle property law.
Bottom line
Government bans: gun owner strongest
Private shop bans: close, contested, but property likely wins
Private home bans: property owner clearly wins
The real fight at SCOTUS is not guns vs. safety—it’s whether enumerated rights automatically override unenumerated but foundational ones, like control of one’s own land.
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While you argue they will lose, 3 conservative justices argue that if I give a plumber rights to enter my home he walks in accompanied by his 2A right to bear arms.
The 2A language is absolute - "right to bear arms SHALL NOT be infringed."
It does not say "right to bear arms, except when you can't." The case is simple textualism.
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Here is how their textualist argument actually works, stated cleanly and without caricature—and then where it quietly runs into limits even on its own terms.
The conservative textualist position (steel-manned)
Text first, no carve-outs.
The Second Amendment says the “right of the people to keep and bear Arms, shall not be infringed.”
There is no textual exception for private property, workplaces, invitations, or homes.Rights attach to persons, not locations.
On this view, constitutional rights travel with the individual.
If the plumber is lawfully present, he does not shed his rights at the threshold like a coat.Permission ≠ waiver.
Granting entry to a home does not implicitly require surrender of constitutional rights, just as allowing entry does not permit:compelled speech,
compelled religious observance,
or warrantless searches.
Founding-era baseline.
At the Founding, many people did carry arms routinely.
Silence about disarmament upon entry suggests bearing arms was presumed, not exceptional.Judicial restraint (as they frame it).
Judges should not invent implied exceptions (“except when the owner objects”) that the text does not contain.
Conclusion (their view):
If the plumber may lawfully enter, he enters as a constitutional rights-bearer, including the right to bear arms.
Where even textualism quietly strains
This is not a liberal rebuttal—it’s where textualism collides with common law, which originalists usually respect.
“Bear arms” ≠ “bear arms everywhere.”
The text is absolute as to existence of the right, not its incidents.
Many rights are absolute in phrasing but situationally bounded:Speech ≠ right to speak in my living room
Religion ≠ right to perform rituals in my house
Assembly ≠ right to assemble in my kitchen
Property law is older than the Bill of Rights.
At common law, an owner could set conditions of entry, including behavior and objects.
Entry was conditional, not rights-maximal.Consent defines scope.
The plumber’s license to enter is limited:to plumbing,
to certain areas,
to certain conduct.
Originalists elsewhere accept that conditional consent limits rights (e.g., workplace rules).
Home has special constitutional gravity.
Conservatives strongly defend the home as a zone of maximal owner sovereignty (Fourth Amendment logic).
A rule forcing armed entry into a home collides with that tradition.
Why this matters for the gun-in-shops case
The plumber-in-the-home example exposes the endpoint problem:
If 2A truly overrides private property everywhere,
then private owners lose control over the most intimate space the Constitution protects.
Most conservatives are reluctant to go that far—even if three are willing to.
Bottom line
The textualist argument is coherent, not crazy:
rights attach to people, the text has no exceptions, judges shouldn’t invent them.
But taken seriously, it implies a radical reordering of property law, one that even originalism has historically resisted.
That tension—not guns per se—is what the Court is actually wrestling with.
- The text is absolute as to existence of the right, not its incidents.
Short answer: yes in concept, no as a fixed slogan.
“Existence” vs. “incidents” is not a stock, capital-E / capital-I doctrinal phrase you’ll find as a named test, but it is a well-established way lawyers and judges think and write about rights—especially when reconciling absolute constitutional text with situational limits.
Here’s how it fits into real jurisprudence:
Where the idea comes from (and how it’s usually phrased)
Courts more often say things like:
“The right itself” vs. “the manner of its exercise”
“Core right” vs. “permissible regulation”
“Existence of the right” vs. “time, place, and manner restrictions”
“Scope” or “incidents” of the right
The word “incidents” is borrowed from common-law property doctrine, where:
Ownership has “incidents” (possession, exclusion, use, alienation)
But those incidents can be regulated without destroying ownership
That conceptual move migrated into constitutional analysis.
Examples across constitutional law
First Amendment
The existence of free speech is absolute.
Its incidents (where, when, how, with amplification, on whose property) are regulable.Fourth Amendment
The existence of privacy in the home is absolute.
Its incidents (entry with consent, scope of consent, knock-and-announce) are limited.Second Amendment (pre-Bruen)
Courts openly spoke of the “core right” (self-defense in one's home) and peripheral incidents (carry methods, locations).Property law (very explicit)
Blackstone routinely described property as a “bundle of rights” with multiple incidents, none individually absolute.
Why the phrasing is rhetorically powerful now
Post-Bruen, courts are uncomfortable saying “balancing” or “tiers of scrutiny,” so they need new language that still does limiting work.
“Existence vs. incidents” does exactly that:
It respects textual absolutism (“shall not be infringed”)
Without committing to rights maximalism everywhere
It’s a textualist-compatible safety valve.
Would a Justice say it?
A Justice is unlikely to say it exactly this way in an opinion—but they might say:
“The Constitution secures the right itself, not every conceivable manner of its exercise.”
or
“The Second Amendment protects the right to bear arms, not a right to carry them in all places and circumstances.”
That is the same move.
Bottom line
The distinction is orthodox
The phrasing is lawyerly but not canned
It maps cleanly onto common-law thinking
It gives textualists a principled limiting rule without hand-waving
You’ve put your finger on a real pressure point in modern constitutional law.
