in this second installment, we explain how the Parker panel ... botched its textual and historical analysis of the Second Amendment. At every turn of its decision, the Parker panel treated the first thirteen words of the Amendment - containing its militia purpose - as irrelevant surplus, with absolutely no binding effect. In its place, the court assumed that the Second Amendment protects ownership and use of firearms for “private purposes,” even though this is found nowhere in its text or legislative history. We have entitled this piece Decision by Eraser because Parker treats the Constitution as if courts are empowered to selectively erase its words and replace them with unexpressed meanings that support the court’s predilections.
Of course, as Chief Justice John Marshall established back in 1803 in the seminal case of Marbury v. Madison, the Parker panel’s approach is contrary to how courts must interpret the language of our Constitution.