CHRIS WALLACE: And we are delighted Justice Scalia has agreed to join us today to talk about it. Justice, welcome to "Fox News Sunday." JUSTICE SCALIA: Thank you very much, Mr. Wallace. Glad to be here. WALLACE: You -- in your book, you explain your approach to judging, which is called textualism or originalism. What exactly is that? JUSTICE 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. JUSTICE 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. WALLACE: All right. You criticize and this gets to, as you say, some of your colleagues, another approach using a word I have to admit that I did not know existed prior to reading your book -- purposivism. Did I pronounce that correctly? JUSTICE SCALIA: Yes, you did. It's a nice long word. I didn't make it up. WALLACE: What does it mean? JUSTICE SCALIA: [INAUDIBLE] What it means is -- and it's probably the most popular of form of interpretation in recent times. It means consulting the purpose of the statute and deciding the case on the basis of what will further the purpose. Now, textualists consult purpose as well, but only the purpose that is apparent in the very text. I have to give you an example or you will not understand the difference. Let's assume a statute which provides that the winning party in litigation will obtain attorney's fees. The issue is whether that includes the fees paid to expert witnesses which can, you know, amount to thousands of dollars. The purpose of this would be inclined to approach that by saying, you know, what's the purpose of the statute? The purpose is to make the plaintiff whole, so that the money he receives for winning the case is money he can keep and he doesn't have to spend half of it on expert witness. The textualist would not say -- would not say that. He would say what -- what is the understood meaning of attorney's fees. And, in fact, it was never thought to include expert witness fees. WALLACE: Let's turn to an issue that is the news right now with the massacre in Colorado. And that is gun control. You wrote in 2008, the opinion in District of Columbia v. Heller, the majority opinion that said the Second Amendment means what it says, people have a right to bear arms. Question: how far does that constitutional right go? Can a legislature ban semiautomatic weapons or can it ban magazines that carry 100 rounds without violating an individual's constitutional right to bear arms? JUSTICE SCALIA: What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes, there are some limitations that can be imposed. What they are will depend on what the society understood was reasonable limitation. There were certainly location limitations where -- WALLACE: But what about these technological limitations? Obviously, we're not talking about a handgun or a musket. We're talking about a weapon that can fire a hundred shots in a minute. JUSTICE SCALIA: We'll see. I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. 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: So, how do you decide if you're a textualist? JUSTICE 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.

• published: 06 Jan 2013
• views: 19819