That would be general, not vague, though I was referring more to the enumerated powers of the government.
Vague –adjective, va⋅guer, va⋅guest.
1. not clearly or explicitly stated or expressed: vague promises.
Which is what I just said:
This is vague, the Framers did not explicitly list what does and does not fall into those categories.
It does when they don't.
I gave an example. However, I missed a step when I did. The court in Warin simply declares that there is no individual right to firearm ownership. For that, they cite their own declaration of the same in Stevens v. United States. Stevens says Miller v. United States declares there is no individual right, but cites absolutely no language in Miller which says this (because there isn't any); the Court just declares it to be so out of whole cloth.
That isn't "reasoning." That's just making something up. And in this case, just plain lying about it.
UNITED STATES v. MILLER, 307 U.S. 174 (1939)
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
In other words, the Court was asserting that the 2nd Amendment must be interpreted to apply only to militias, within the purview of Article 1 Section 8 of the United States Constitution. Which is what Stevens v. United States was also asserting. Hence, it is reasoning, even if you may not like the outcome.
Frank James Stevens v. United States of America
Since the Second Amendment right ‘to keep and bear arms’ applies only to the right of the state to maintain militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.
In addition United States v. Warin also cites 2 other cases for its assertion:
See also, United States v. Johnson, 497 F.2d 648, 560 (4th Cir. 1974); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942).
Here is a quote from the opinion in United States v. Tot:
It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.
I said there are no restrictions on a practical level. This is all well in good in theory, but in practice, it doesn't work this way. Courts rule simply what they want to rule all the time. Stare decisis is decisis until, well, they don't feel like following it anymore.
Why does it not work this way? It has worked this way in the past.
Some examples of jurisdiction stripping by Congress in the past:
Termination of case Ex Parte McCardle (1869)
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Prison Litigation Reform Act of 1996
Antiterrorism and Effective Death Penalty Act of 1996
Implications for Stare Decisis:
The Supreme Court is superior to all other courts, state and federal, in interpreting national law, and therefore its decisions are binding upon them all. Unlike the decisions of the Supreme Court, which have national precedential authority, the decisions of the US courts of appeals are binding only upon the courts within their geographical circuits.
Courts must defer to precedent set by a superior court. As a matter of policy, courts should also respect their own prior decisions. However, a court may overturn a prior decision. The Supreme Court did this in Brown v. Board of Education, wherein it set aside the separate-but-equal doctrine that it established in Plessy v. Ferguson.
The Constitution has been amended four times to reverse Supreme Court decisions:
1)The Eleventh Amendment, which provides for state immunity in federal court. Enacted in response to Chisholm v. Georgia.
2)The Fourteenth Amendment, which provides for due process and equal protection in the states. Enacted, partly, in response to Dred Scott v. Sandford.
3)The Sixteenth Amendment, which provides for the federal income tax. Enacted in response to Pollock v. Farmer’s Loan Trust Co, in which the Court ruled a federal income tax unconstitutional.
4)The Twenty-Sixth Amendment, which provides that all individuals age eighteen and older possess the right to vote in state and national elections. Enacted in response to Oregon v. Mitchell.
Spend some time reading through a bunch of meaty dissents, and you'll see exactly what I'm talking about.
After an opinion and ruling is rendered, dissents don’t really hold much water. They don’t constitute legal precedent themselves.
