Interaction of 2d, 9th, and 14th Amendments
The 9th Amendment provides that the enumeration of rights in the first eight amendments shall not be read to disparage or rule out other rights reserved by the people. It was designed to overcome the objection that enumation of a list of rights would be construed to rule out any other rights (which is of course what has happened).
The 14th Amendment forbids the States to deprive anyone of the "privileges and immunities" of national citizenship. As I read the legislative history, that meant the federal Bill of Rights protections (and some others).
The Supreme Court, in the Slaughterhouse Cases and US v. Cruikshank, differed. The reasoning (after the Court's initial proclamation that doing this, and giving federal courts power to enforce it, would be so shocking a violation of federalism as to require the clearest of proof that this was intended -- the "we can't believe they meant to do this" maxim of constitutional interpretation) was roughly: (1) privileges and immunities of US citizenship must be something other than P&I of state citizenship, those rights that would have existed before there was a federal constitution and thus federal citizenship; (2) the rights at issue in those cases (freedom to assemble, to bear arms, etc.) were rights that always existed in any free society, and thus antedated the US Constitution, hence (3) they could not be privileges and immunities of US citizenship.
Now, with the caveat that I've always figured that if you couldn't win on the 2nd Amendment, you sure weren't going to win on the 9th,--
Doesn't the Slaughterhouse/Cruikshank reasoning lead inevitably to the conclusion that the individual right to arms is protected, against federal action, by the 9th Amendment? The Court says the reason it isn't protected against State action by the 14th Amendment, is that it is a right that has always existed, in any free society, existed whether written out or not, and hence pre-existed the Constitution. Doesn't that fall squarely within the 9th Amendment as a right reserved by the people?
It seems to me that there is a dilemma here: a right held inapplicable to the States under the P&I clause must logically be one that binds the U.S. under the 9th Amendment.