RE: The most polite put-down I recently read.

[Dave Hardy]

-----Original Message----- From: Raymond Kessler Sent: Jul 15, 2009 3:07 PM To: jon.rol...@constitution.org Cc: 'List Firearms Reg' Subject: RE: The most polite put-down I recently read. Agreed.  So why didn’t the Roe Court bother to at least mention the 9th Amendment?  I don’t recall any such reference in the opinion.   ______________________________ Once debated that with a friend. What's the real, practical, difference between basing the concept on the 9th and basing it on penumbras (the method being essentially that it parallels enumerated rights or the value judgments that underly them -- the same method being adaptable to 9A analysis). After tossing it back and forth, we thought it probable that it was -- well, the Court is accustomed to responding to criticism with the note that its job is to say what the existing law is, not to make a call on what it ought to be. (Leave aside the accuracy of that statement, it is a reflexive response with a fair amount of appeal). Saying 9th Amendment makes it harder to assert that. Everyone can respond "Nonenumerated right? You pulled that one outa your robes!" Saying penumbra gives some cover, it's sorta like saying that you found it in the Constitution... or maybe just barely outside the Constitution ... but it's still something that was out there and you found it.

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