Senile or Activist Judge?

I read in today’s paper that Judge Laurence Silberman said in regard to the District of Columbia's position in Parker v. District of Columbia: "Show me anybody in the 19th century who interprets the Second Amendment the way you do, It doesn't appear until much later, the middle of the 20th century."

The Judge would not have made this statement if he read the precedents cited in United States v. Miller, 307 U.S. 174 (1939), In particular, Aymette v. State, 2 Humphreys 154 (Tenn. 1840).

I bring your attention to this quote from the above case:

"To make this view of the case still more clear, we may remark
that the phrase, "bear arms," is used in the Kentucky constitution
as well as in our own, and implies, as has already been suggested,
their military use. The 28th section of our bill of rights provides
"that no citizen of this state shall be compelled to bear arms
provided he will pay in equivalent, to be ascertained by law." Here
we know that the phrase has a military sense, and no other;
and we must infer that it is used in the same sense in the 26th section,
which secures to the citizen the right to bear arms. A man in the
pursuit of deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him that he had
borne arms; much less could it be said that a private citizen bears
arms because he has a dirk or pistol concealed under his clothes,
or a spear in a cane. So that, with deference, we think the
argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive."

Given this case was written in December 1840, the view that bearing arms applied to military service was indeed held prior to the 20th Century.

In fact, saying that firearms were commonplace items is ridiculous given the technology of the 18th Century. Interchangeable parts were not common and neither was mass production of firearms.

This is roughly the equivalent of saying that the average person could afford a Purdey or Holland and Holland shotgun.

Of course, there are those who believe "life, liberty, and the pursuit of happiness" means we have a right to a Playboy playmate, Penthouse Pet, or, in my case, Bark Pet for a partner, a six figure income and a Lambourghini Countach.

I hope the Judge considers that what is called the “collectivist” interpretation was used in 1840 rather commonly when he issues his opinion on this case.

Additionally, he may wish to do some research regarding this matter as he will find the military interpretation of bearing arms was indeed very commonplace usage during this period.

A read of Saul Cornell’s A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America would be well worth it.

Any further comment about the Judge's statement would be a crime called Murmuring Judges in Scotland.

Dumb just means I can't talk!