If I understand you correctly, I don't disagree, but would observe that finding a such a right protected by the 9th amendment at the time it was passed, is going to take a heap of diggging, and probably will result in a dry hole. Sure the federal government had no power to legislate in the area at all, but you'd have to find someone who argued for such a right, or a provision in state constititutions or laws of the time, or even in English Common law, protecting such a right. It's not like the application of privacy rights, to internet communications, where one must ask the question "what would the founding fathers do" in applying the Constitution to such a situtation. They knew about homosexual acts, the state and before that the colonies had laws against them. They also had similar privacy protections to those of the 4th and other amendents, in their state consittutions. Those can be looked to. What can't be looked to in order to interpret the US Constitution are the provisions of the European Covenent on Human Rights, which is in part what the court did. The 9 th amendment protects rights "retained by the people", which to me says those rights had to be recognized as rights, not made up 200+ years later, and in part by an extra-consitutional foregin body at that.