Parker v. The District of Columbia and the Hollowness of Originalist Claims to Principled Neutrality

Abstract

In Parker v. the District of Columbia, the D.C. Circuit became the first United States Court of Appeal to strike down legislation or invalidate government action under the Second Amendment. The case, appealed to the United States Supreme Court sub. nom. D.C. v. Heller, held that the constitutional right to arms applies even outside the context of service in the lawfully established militia. In so reasoning, Judge Silberman relied on originalist methodology to argue that the framers of the Bill of Rights desired to protect a right to own weapons for purely private purposes. This assertion is, as a matter of history, highly dubious. But Silberman's results-driven reasoning in Parker does more than betray its author's historical ignorance. Ultimately, Parker illustrates powerfully the inability of originalism to provide a value-neutral, objective alternative to other interpretive models allegedly discredited by their own susceptibility to judicial subjectivity.

Keywords: Parker v. the District of Columbia, Second Amendment, right to arms, constitutional interpretation, originalism, legal process theory, living constitutionalism, militia