It's too bad he has to use that bit of sophistry. - But I'm sure he realizes that if he doesn't, his whole 'Governments can be trusted with the power to prohibit' theory comes crashing down.
Our 10th makes it absolutely clear that powers not delegated to governments are reserved "to the people".
Usually SCOTUS doesn't have much use for the Tenth -- particularly libs -- but we're likely to get Ginsberg's vote at least. Why do you think they call her "Buzzy"?