StephanKinsella.com

Back in 2008 I pointed out some problems with resorting to the courts of the central state to vindicate our rights, in the context of the Heller gun rights case. I argued that the Bill of Rights limits the power of the federal government. It was certainly not meant not empower the federal government via the courts or Congress to strike down state laws. For example at the time the Bill of Rights was ratified (1791), several states had an established religion. (See my post State and Religion.) Obviously the prohibitions on state involvement in religion in the First Amendment were limits on federal not state power.

The same is true for the Second Amendment. I have never believed the prefatory clause about militias was a limit on this limitation on federal power. In my view a federal court should refuse to enforce a federal law restricting gun rights, since there is no enumerated power granted to Congress to enact such a general, national law. And as a backstop, the Second Amendment further prohibits such federal legislation. But does it limit the states? No.

I had problems with some aspects of the Heller case, in which the Supreme Court struck down a Washington D.C. gun law based on the Second Amendment. (See To Hell with Heller; Heller gives local governments “space within which to limit gun ownership”; The Great Gun Decision: Dissent; Gun Haters Happy with Heller; and other posts.) Not that I was that upset with it. I would have probably voted to strike it down too, on libertarian grounds (see my post Higher Law). And thus I praised Heller plaintiff Tom Palmer for fighting against unlibertarian laws (Tom Palmer’s Fight for the Right to Bear Arms).

Scholar Kevin Gutzman had another interesting critique of Heller: he argued that not only does the Bill of Rights not apply to the States, but it did not even apply to Washington, D.C. itself, as a sort of “pseudo-state”–a special jurisdiction under federal control that operates somewhat like a state. I noted this intriguing argument in one of my posts criticizing Heller, The Great Gun Decision: Dissent, where I wrote:

Second, as Kevin Gutzman notes, the Bill of Rights provides limits on the power of the federal government–not states, and not DC. So, as with the majority in the Kelo case, the dissent would have had the right result for the wrong reasons. In Heller, the majority is correct in how they construe the meaning of the Second Amendment; the liberals are blatantly, dishonestly wrong. But both sides incorrectly believe that the Bill of Rights applies to DC. ¹

Heller plaintiff Tom Palmer roundly condemned Gutzman’s argument as “just plain dumb.” And libertarian centralist and Lincoln idolator Tim Sandefur attacked both me and Gutzman, in a post entitled “Stephan Kinsella’s idiocy reaches new lows.”

What is interesting is esteemed libertarian and Cato scholar Richard Epstein has recently opined that the Second Amendment does not apply to Washington, D.C. In The Libertarian Gun Fallacy, Professor Epstein writes “the Second Amendment imposes no limitations on the states … Washington D.C. [is] the one place where the amendment has no application whatsoever.” (See also Damon Root on Libertarians, Guns, and Federalism.)

Hmm.

1. See also my post The Unique American Federal Government.[↩]

Is up!

Note: An updated and revised version of this article is included as Chapter 21 of Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023).

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Below is a lightly edited text version of “Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights [1995],” Hastings Const. L.Q. 24, no. 3 (Spring 1997): 757–84.

Update:

Of course. Context, custom, tradition, language, communication matters. A similar point was made by @RandyEBarnett , if I am not mistaken, in his seminal work on the ninth amendment and natural rights. IIRC — the argument is something like this: if you take an originalist…

— Stephan Kinsella (@NSKinsella) August 22, 2025

“may have found it. p. vii of Barnett’s foreword in vol. 1, “The essays raise both historical and philosophical questions: How should we use history in interpreting the Constitution? Which body of history should we use? Given that many of the Framers believed in natural rights, should those principles inform our constitutional adjudication, as Bennett B. Patterson argues?” [nsk note: FIX LATER] see also pp. 32-34 in vol. 2, of Barnett’s chapter. See also other quotes in this ChatGPT conversation e.g. Restoring the Lost Constitution p. 78;

and p. 34 of vol. 1:

The adoption of the Ninth Amendment forces those who reject the reality of such rights, but who seek to interpret the Constitution according to either original intent or original meaning, to hypothesize on the content of this expanded list. Without such an attempt, the scheme of delegated powers and reserved rights becomes fundamentally different from the one that the Framers promised and the people involved in the ratification process agreed on. Modern philosophical skepticism about rights is simply beside the point. Just as contract law seeks to enforce the “benefit of the bargain” as agreed to, enforcing the Constitution as enacted would seem to require protection of the retained rights and liberties of the people assumed by the Ninth Amendment in the same manner as we would if we believed these rights and liberties to be “real.“ From the perspective of either original intent or original meaning, ignoring the Ninth Amendment because it does not comport with modern moral philosophy is (to shift the metaphor) a form of constitutional bait and switch.

Taking the Ninth Amendment Seriously

Review of Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Philadelphia: Temple University Press, 1995)

By N. Stephan Kinsella^[1]

Abstract:  In this review, Mr. Kinsella details and critiques Calvin R. Massey’s recent book on the Ninth Amendment.  Massey points out that many modern constitutional theorists hold that the Ninth Amendment cannot be read as a source of rights that can be used to strike down legislation, but only as a rule of construction that prevents construing the Bill of Rights to imply the existence of federal powers beyond those enumerated.  However, Massey argues, because of the modern expansion of federal powers and current constitutional jurisprudence, it is now “impossible” to achieve the amendment’s original function of limiting the implied powers of the federal government.  Massey suggests that, under a theory of “constitutional cy pres,” the original government-limiting purpose of the Ninth Amendment can nevertheless be achieved if it is read as a source of unenumerated rights that can be used to trump legislation.  Massey goes on to argue that these unenumerated rights include both natural rights and positive rights protected in state constitutions.

Kinsella argues that Massey’s theory has little constitutional support, and that this theory would undermine the principle of federalism, itself one of the original purposes of the Constitution.  Kinsella concludes by suggesting better approaches to constitutional interpretation or reform, such as the approaches of Randy Barnett and Marshall DeRosa. [continue reading…]

I’m not talking about personal matters like getting married or having a child or having great parents. Or, intellectually, on the level of reading Mises or Hoppe or Rothbard (or meeting the latter two, for that matter). But three great practical things that stand out that have made big differences for me:

• Learning touch-typing in 10th grade.
• Switching to a left-hand mouse (though now I use only trackpads) (see “Go Left, he said”: How Jeff Tucker Saved My Life).
• Adopting the GTD (getting things done) methodology (or, a version of it, as best I can).

I’ve started a podcast on HuffDuffer (RSS; Subscribe in iTunes), which I’ll use for my past and upcoming media, and for occasional audio files by other speakers I find interesting.

I listen to a lot of podcasts and am very impressed by some of the intro/theme music (I think it’s sometimes called bumper music) they came up with. It’s such an incredible skill to me. Hear are my favorite ones, in descending order:

1. KERA Think. Just love it. Soothing and pleasant, just the right length. Wow. (It’s also one of my favorite podcasts.) Recent episode; listen at 0 to 10 seconds; and the transition at 14:02 to 14:50;
2. Slate podcasts, e.g. the Culture Gabfest. Recent episode;
3. Cato’s daily podcast. Recent episode;
4. Free Talk Live’s varied metal openings (example);
5. The awesome opening to Sex, Lies, and Anarchy, clips from the uber-cool song Shiny Toy Guns.

My friend and former patent lawyer colleague Steve Mendelsohn sent me the essay below (Steve doesn’t have his own blog, so this is posted here with his permission). One of his other pieces is the funny “Confessions of a Law School Asshole,” published when he was a law student at U. Penn in The Penn Law Forum (Sept. 26, 1990). Feel free to send Steve comments at [email protected].

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The God of Death and the Death of God

by Steve Mendelsohn

[email protected]

From almost my earliest childhood memories, I remember being terrified of death.  I remember crying out to my dad from the dark of my bedroom as a 7 or 8 year old, unable to sleep from my fear of death.  “Dad,” I’d wail, “what happens when you die.”  “Your soul goes into a new baby,” he’d reassure me.

            But that wasn’t reassuring.  That wasn’t reassuring at all.  What good is that to me if my soul goes into a new baby?  I don’t remember who I was before that person’s soul came into me when I was born.  So, in the same way, my consciousness would not continue after I die and my soul goes into some other new baby.

            What good was my dad’s version of reincarnation if your consciousness doesn’t continue to your next incarnation?  And where the hell did my dad come up with reincarnation anyway?  Jews don’t believe in reincarnation.  Judaism isn’t sure what Jews should believe in, but it sure isn’t reincarnation. [continue reading…]

My parents’ recent selection of their tombstones got me ta thinkin’. I think the epitaph I’d like would be: Father, Husband, Libertarian.

Guy Kedem sent me a link to his article Dialogical Libertarianism: Ultimate Foundation of Ethics, which is a Hebrew-language discussion of Hoppe’s argumentation ethics and my estoppel theory of libertarian rights.

For more on argumentation ethics, see my “Argumentation Ethics and Liberty: A Concise Guide,” Mises Daily (May 27, 2011) (includes “Discourse Ethics and Liberty: A Skeletal Ebook”). For more on estoppel, see “Punishment and Proportionality: The Estoppel Approach,” Journal of Libertarian Studies 12:1 (Spring 1996): 51. Both approaches, and other, related theories, are discussed in my “New Rationalist Directions in Libertarian Rights Theory,” Journal of Libertarian Studies 12:2 (Fall 1996): 313-26.

From The Libertarian Standard, Dec. 5, 2011

My fellow TLS blogger Norman Horn’s recent speech, What you can do to promote liberty, called to mind some things I’ve blogged about before. In Nock and Leonard Read on “One Improved Unit” and the Power of Attraction, blogged previously here, I discussed the idea advocated by Albert Jay Nock and Leonard Read, that your primary task is to improve yourself–to strive for excellence in yourself. Then you become a bright light that attracts people; they see you are good, and successful, and worth emlating or listening to–so you win people over by the power of attraction. They come to you, and then you have more success spreading the ideas of liberty than if you go around being a boor. More detail, including excerpts from Nock and Read, are in that post.

[The Golden Age of America is Now]

The other post, previousyl blogged elsewhere, is reproduced in full here:

 Career Advice by North

Great passage that I’ve always liked from Hans-Hermann Hoppe’s The Economics and Ethics of Private Property, p. 417-18:

In fact, what strikes Conway as a counterintuitive implication of the homesteading ethic, and then leads him to reject it, can easily be interpreted quite differently. It is true, as Conway says, that this ethic would allow for the possibility of the entire world’s being homesteaded. What about newcomers in this situation who own nothing but their physical bodies? Cannot the homesteaders restrict access to their property for these newcomers and would this not be intolerable? I fail to see why. (Empirically, of course, the problem does not exist: if it were not for governments restricting access to unowned land, there would still be plenty of empty land around!) These newcomers normally come into existence somewhere as children born to parents who are owners or renters of land (if they came from Mars, and no one wanted them here, so what?; they assumed a risk in coming, and if they now have to return, tough luck!). If the parents do not provide for the newcomers, they are free to search the world over for employers, sellers, or charitable contributors, and a society ruled by the homesteading ethic would be, as Conway admits, the most prosperous one possible! If they still could not find anyone willing to employ, support, or trade with them, why not ask what’s wrong with them, instead of Conway’s feeling sorry for them? Apparently they must be intolerably unpleasant fellows and should shape up, or they deserve no other treatment. Such, in fact, would be my own intuitive reaction.

I seem to recall Rothbard saying something similar, something to the effect that in a free society we could of course expect the misfortunate and poor to receive charity from others, unless they were so unpleasant that they could find no one who could help them, in which case this is not the fault of the free market … anyone remember this?

[TLS]