On Sunday, Supreme Court Justice Antonin Scalia caused quite the stir when he told Chris Wallace of Fox News Sunday that there “undoubtedly are” limitations on the right to keep and bear arms.
The subject of guns and gun control came up when the two men were discussing the release of Scalia’s new book, “Reading Law: The Interpretation of Legal Texts,” a book he co-authored with legal scholar Bryan Garner.
After referencing the mass shooting in Colorado, that left 12 dead and 58 more wounded, Wallace asked the conservative Justice about limitations to the 2nd Amendment.
“Yes, there are some limitations that can be imposed,” Scalia, a constitutional orginalist, said. “What they are will depend on what the society understood was reasonable limitation” when the Constitution was written.
One such 18th century limitation was carrying menacing hand-held weapons, such as a “head ax,” with the intent to scare or intimidate people, Scalia explained.
Wallace pressed Scalia about “technological limitations,” such as banning large capacity magazines or high-powered semi-automatic rifles that can fire a hundred rounds in a minute.
“The [2nd Amendment] does not apply to arms that cannot be hand-carried.” Scalia said. “It’s to keep and bear. So, it doesn’t apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be — it will have to be decided.”
Wallace followed up with the obvious question, how does someone who prescribes to Scalia’s brand of legal reasoning or constitutional interpretation decide?
WALLACE: So, how do you decide if you’re a textualist?
SCALIA: Very carefully. My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.
Scalia’s answers raise many questions, some specific, such as do, popular rifles, like the AR-15, fit within the understood limitations of 18th Century America? And some more general, like, where does one draw the line?
Also, where do facts and research come into play? The Assault Weapon Ban expired in 2004, and crime has dropped almost every year since. It’s empirically clear that more guns – of all makes and models, calibers, etc. – in the hands of law-abiding citizens does not increase crime rates.
To put it another way, shouldn’t the court consider life in modern America when considering the constitutionality of modern weapons?
If you’re like me and you’re confused about the way in which Scalia interprets the Constitution, earlier in the interview, he briefly explicated his method.
SCALIA: Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.
Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning. So —
WALLACE: So, if it was the Constitution written in the 18th century, you try to find what those words meant in the 18th century.
SCALIA: Exactly, the best example being the death penalty. I’ve sat with three colleagues who thought it was unconstitutional, but it’s absolutely clear that the American people never voted to proscribe the death penalty. They adopted a cruel and unusual punishment clause at the time when every state had the death penalty and every state continued to have it. Nobody thought that the Eighth Amendment prohibited it.