Conjecture: Heller was 5-4 meaning 5 justices said 2nd protects individual RKBA and 4 justices say

[jody]

9th Amendment protects individual RKBA.

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “{t}hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.

By recognizing that PA and VT declared the individual right to keep and bear arms for self-defense, the 5-4 vote on Heller can be interpreted as 5 justices believe RKBA is protected by the enumerated Second Amendment and the other 4 justices believe RKBA is an un-enumerated right protected by the Ninth Amendment.

That is a logical conclusion because when the four justices accept the PA and VT constitutions and their declarations of rights, they also accept the first statements, e.g. PA (1776) "That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." and "That the people have a right to bear arms for the defence of themselves and the state;”.

As an inalienable right, it is impossible for PA and VT citizens to have given away their individual RKBA when they ratified the Constitution or Bill of Rights.

Viewed that way, the Heller decision both majority and dissent agree that the Constitution requires government to protect individual RKBA either as an enumerated right with the Second Amendment or as an un-enumerated right covered by the Ninth Amendment.

[SlipperySlope]

1. In a sense, it was a unanamous ruling.

It think even the dissent wrote that the Second protected an individual right to some degree, just not to the degree that the majority did.

In that sense, it was a majority ruling for an individual right, but a divided court on how protected that right is.

[tburnsten]

3. the minority pretty much stated

that they agree that it is an individual right, but that they don't feel there is anything wrong with hair-splitting and outright bans. Great guys.

[aspergris]

5. True

And it's gotta be one of the most intellectually dishonest positions one could take.

It would be like saying 'the right to free speech is clearly an individual right, but it's perfectly reasonable for the govt. of DC to require you to get govt. permission before you make any statements in public, and all statements must be vetted beforehand"

I could at least respect the internal consistency of saying it's NOT an individual right, and thus the DC ban is reasonable regulation.

But it's absurd to argue that

1) The right to keep and bear arms is an individual right
2) but it's perfectly reasonable to BAN handguns

That is simply not a consistent position.

Great discussion of this at Volokh.com btw.

And Scotusblog.com

[benEzra]

2. Good catch. I hadn't even noticed that. (n/t)

[SteveM]

4. The Four point to PA, VT, et al., in argument, but can a future court restrict?(nt)

[jody]

6. Would that raise issues regarding what the Constitution means by "The United States shall guarantee

to every State in this Union a Republican Form of Government" and of what value are the Ninth and Tenth Amendments?

PA and VT constitutions were written before the Constitution was ratified.

Could the question be restated as "Can state constitutions reserve rights to the people (9th) and power to the people and state (10th) or is the federal government omnipotent?"