Constitutional FAQ Answer #13
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Q13. “I believe that gambling should be
legalized in every form. Do you think that the ninth amendment of the
constitution supports this claim, and why?”
A. Is your argument that just because the right to gamble is not enumerated
in the text of the constitution is not to be taken to mean that you do not have
a right to gamble?
In theory, gambling is legal in every form… except where
prohibited by local law. So says the 10th
amendment – the power to regulate gambling, not given to the Federal
Government, is granted to the states.
Prior to the 14th amendment, the Bill of Rights had no power over States (in other
words, a State could have taken away your right to free speech or to own a gun,
assuming such an act did not violate the state’s own constitution), but since
the 14th amendment, most rights reserved for the people by the Constitution
have been found to apply to the states, too, through a process known as
incorporation. So, if you can come up with a valid reason why gambling is, say,
a form of protected speech or assembly, then you might have a case. But the
Constitution of the U.S. and those of the states often include provisions for
the government to look after the general health and welfare of the people; the
potential for abuse of gambling may give the state compelling reason to
prohibit it.
For more information on the Bill of Rights and incorporation, see the
Bill of Rights Topic Page.
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Last Modified: 16 Aug 2010