A growing body of historical research has demonstrated that Scalia’s opinion in Heller is just plain wrong as a matter of originalism: The words of the Second Amendment, as accepted at the time of its ratification, were not understood to create an individual right to bear arms.
Scalia’s opinion was an example of living or “popular constitutionalism,” transfiguring modern demands into ancient rights. Yet the Supreme Court’s conservatives have shown no interest in reconsidering Heller; to the contrary, they are now on the brink of extending it. When originalism clashes with the conservative legal movement’s agenda, it is easy to guess which will win out.
In 2021 so far, there has already been more than one mass shooting each day. The United States is transforming into a battlefield, where no one can go to a store, a park, or a school without the fear that they might be shot to death.
Further, American gun culture has contributed to hair-trigger policing that results in a vastly disproportionate number of police killings of civilians when compared to peer nations, a crisis which has fallen particularly hard on Black Americans.
At least the justices have made Democrats’ options starker than ever. Congress and the White House can prioritize court expansion, adding liberal justices to prevent the current 6–3 majority from eradicating gun safety laws. Or they can watch as the majority exacerbates the nation’s epidemic of gun violence by imposing a vision of the Second Amendment that data has indicated leads to more handgun-related homicides. The choice has never been so clear. And the stakes can be measured in human lives.