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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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