Justice Antonin Scalia said there “are some limitations that can be imposed” on the purchase of guns but would not say whether a legislature could ban semi-automatic weapons or 100-round magazines.
“We’ll see,” the Supreme Court justice said Sunday when asked in an interview on Fox News whether a legislature could restrict the purchase of those items in the wake of the movie massacre in Aurora, Colo.
Scalia authored the high court’s 2008 opinion in District of Columbia v. Heller, which ruled that the Second Amendment protects an individual right to bear arms and invalidated a D.C. ban on handguns.
“Some undoubtedly are [permissible], because there were some that were acknowledged at the time” of the writing of the Constitution, he said on “Fox News Sunday.” “So yes, there are some limitations that can be imposed. What they are will depend on what the society understood were reasonable limitations at the time.”
Scalia pointed out that the Second Amendment did not apply to “arms that cannot be hand-carried,” such as cannons.
The conservative justice described, as he has many times before, his “textual” approach to interpreting the Constitution, which requires that its provisions be read according to their meaning at the time of its drafting. New gun restrictions, he said, would be weighed “very carefully.”
“My starting point and probably my ending point will be what limitations are within the understood limitations that the society had at the time,” he said. “They had some limitations on the nature of arms that could be bought. So we’ll see what those limitations are as applied to modern weapons.”
In the wide-ranging interview, Scalia defended his view that “there’s simply no way to interpret” the individual mandate at the center of the 2010 healthcare law as a tax - the finding by Chief Justice John Roberts Jr. that prevented the law from being overturned.
“You don’t interpret a penalty to be a pig. It can’t be a pig,” Scalia said of the ruling. “You cannot give the text a meaning it will not bear.”
He would not describe the internal deliberations of the Supreme Court on the landmark case and demurred when asked if Roberts changed his mind on the decisions, as has been reported.
“I don’t know. You’ll have to ask him,” Scalia said. “I don’t talk about internal court proceedings. Never ever.”
He did say that not only had he changed his own mind on certain decisions after the initial deliberation but that he had even changed his mind on majority opinions that he was assigned to write.
Scalia defended the court in light of polls that show declining public approval and an increase in the perception that its decisions are political. “I don’t think the court’s political at all,” he said. He attributed the prevalence of 5-4 decisions to presidents in recent decades choosing justices according to their judicial philosophy, arguing that their rulings followed that philosophy, not their political orientation.
Scalia declined to criticize President Obama for calling out the court during his 2010 State of the Union address and for saying it would be “unprecedented” for the high court to overturn his healthcare law, although the justice indicated he disagreed with him.
“I don’t publicly criticize the president, and he normally doesn’t publicly criticize me,” he said.
Finally, the 76-year-old Scalia offered little hint as to when he might retire. “No immediate thoughts about it,” he said. “My wife doesn’t want me hanging around the house, I know that.”
He wouldn’t say whether he’d wait for a conservative president to appoint his replacement, but he said: “I would not like to be replaced by someone who sets about trying to undo everything I’ve done for the last 25 years.”