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Smerconish

The Case for Cameras; Did Chauvin Trial Make the Case for Cameras in the Courtrooms?; What Could U.S. Police Reform Look Like?; Should Washington D.C. Become 51st State?; Interview With Congressman Mondaire Jones (D-NY); Does 2008 SCOTUS Decision Prevent Serious Gun Law Reform. Aired 9-10a ET

Aired April 24, 2021 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: The case for cameras. I'm Michael Smerconish in Philadelphia. Many legacies of what can now be called the murder of George Floyd have already received ample coverage, a national turning point against police brutality, officers finally willing to cross the blue line to speak out against one of their own and the pivotal role of a 17-year-old bystander, Darnella Frazier, whose video footage memorialized the incident.

The 14-day trial will be remembered for all that and more, but there's one thing that should not go unnoticed, the trial of Derek Chauvin was a vindication for cameras in American courtrooms. Not since the O.J. Simpson criminal trial in 1995 have so many Americans gathered around televisions to watch the administration of justice. More than 23 million tuned in for the verdict alone across 11 networks, with CNN leading the way.

In 1995, many of us were similarly obsessed with Simpson, but unlike Chauvin, Simpson quickly became a spectacle. Big on personalities, but little in common with how trials are conducted all across the country every day. Back then, the judge, Lance Ito, and the lawyers became as much the focus as the underlying facts. Johnnie Cochran, Robert Shapiro, F. Lee Bailey and Alan Dershowitz, they comprised the Simpson dream team.

We even met our first Kardashian, Robert, father of Kim, Khloe and Kourtney, a lawyer and friend of O.J. there were Bruno Magli shoes, Isotoner gloves, a limo driver named Allan Park, who can forget Fuhrman, Lange, Vannatter? Heck, when prosecutor Marcia Clark got a new hairstyle, it was big news, but the epitome of Simpson, hands down America's most famous house guest, Kato Kaelin.

It was a total Hollywood production with characters out of a screenplay. Media careers were made, among them Dan Abrams and Diane Dimond. The veteran, Dominick Dunne, ensconced at the Chateau Marmont while covering the case and writing letters from Los Angeles for his "Vanity Fair" column.

And then when each trial day ended, many of us tuned in to "LARRY KING LIVE" for the recap. He always had the central players as guests, but as for the administration of justice, it was a fiasco. In the end, O.J. walked even though we all knew he did it and cameras were often blamed as the culprit. I never bought into that. The cameras weren't to blame, and the proof is in Minnesota.

The Chauvin trial was the first in state history to be broadcast live and in full and credit goes to Judge Peter Cahill for allowing this. The trial was telecast with dignity. Jurors were not shown, nor minors or George Floyd's family members without consent. Credit also goes to that big prosecution team, the defense lawyer, Eric Nelson, and the many witnesses, not a Kato Kaelin among them.

No, the Derek Chauvin trial was all business and better representative as well as a validation of America's court system and now we need to mimic the example. Think about it. You've got a right to walk into your local county or federal courthouse, including the Supreme Court of the United States, and your presence should be represented by a camera. Transparency matters. Cameras are the ultimate disinfectant.

I'm reminded of the fact that Senator Arlen Specter, who was a friend and mentor of mine, Pennsylvanian's longest serving U.S. senator, was a long-time advocate of cameras in the Supreme Court. When Senator Specter was on the Judiciary Committee, including when he was its chair, he made it a point to question nominees for the Supreme Court about how they felt about allowing cameras in the courtroom and he usually got them on record saying it was a noble idea and something that ought to be pursued.

(BEGIN VIDEO CLIP)

ARLEN SPECTER, FORMER UNITED STATES SENATOR: John Paul Stevens said television in the court is worth a try. Justice Ruth Bader Ginsburg said, quote, "I don't see any problem with having proceedings televised. I think it would be good for the public." Justice Breyer said, "I voted in the judicial conference in favor of experimenting with television in the courtroom." Justice Alito said that in the Third Circuit, there was a debate and he argued that we should do it, that is televising, and said I would keep an open mind on the subject with respect to the Supreme Court.

(END VIDEO CLIP)

SMERCONISH: But of course, the moment they were confirmed and got on the Supreme Court of the United States and wearing the black robe, they had a change of perspective because they didn't want the public looking over their shoulder. So as we reflect on the Derek Chauvin trial, let us remember the value of cameras, the camera of Darnella Frazier that captured the murder and the cameras in the courtroom that showed all of us what justice looks like.

[09:05:01]

Joining me now to discuss is Emmy Parsons, an associate at the law firm of Ballard Spahr which represented a media coalition seeking access to the Chauvin trial. She co-authored this piece for "Bloomberg," "Chauvin Trial Shows Why Cameras Need to Be in Court." Emmy, why was this case able to be televised? EMMY PARSONS, ATTORNEY/REPRESENTED MEDIA COALITION SEEKIGN ACCESS TO CHAUVIN TRIAL: Hi, Michael. Thank you for having me. I appreciated your introduction. It's exactly right. This case was remarkable in the use of cameras in the courtroom. Now, ordinarily under Minnesota court rules, all parties to a criminal prosecution must consent to the use of cameras during a court proceeding before a defendant has been found guilty or pled guilty.

In this case, Derek Chauvin, the defendant, consented to the cameras, but the state of Minnesota, which was prosecuting the case, said they did not consent.

So that would normally have been the last word on this case, but as you pointed out, due to Judge Cahill's bravery really in this case, he said this case is unique, it is one of the most high profile cases in the history of this country and it is being held at a time where a pandemic is raging and social distancing requirements are in place that make it so that the public will not have access to this trial absent the use of cameras in the courtroom.

Now, that right comes from the First and the Sixth Amendments to the Constitution and both of those constitutional rights speak to this idea that the press and the public need to be in the courtroom, need to have access so that they can see that justice is carried out and that defendants are dealt with fairly and so in this case, Justice -- or excuse me -- Judge Cahill said we can't abide by the requirements of the First and the Sixth Amendment without having cameras.

So, he issued an order in November 2020 saying, State, I see you, I hear you, I see that the court rules do not ordinarily allow this, but this is what is required in this case and we're thrilled with how that's played out.

SMERCONISH: What do you think moving forward? What do you think the prospect is now that people will buy into the assessment I've just offered and clearly that you've just offered and say, you know, this is a good thing? Might this be a turning point elsewhere?

PARSONS: That is certainly what we hope. We hope that what people saw tuning into this trial is that, contrary to the fears that courts have historically had that, as you talked about, folks would grandstand, that it would impact the behavior of trial participants or that witnesses would be intimidated and unwilling to testify, not only did the cameras in this case not lead to those feared outcomes.

But the cameras in this case really allowed the public, not only in Minnesota and Minneapolis, the few who may have been able to attend in person, but it allowed the entire country and even the world to see that justice was carried out and, you know, as far as the justice system can allow. And so our hope is that really people watch this, see that there is a lot of benefit to cameras being allowed in the courtroom and that courts are more willing to allow cameras in their courtroom.

Even in Minnesota, it's not a given that after this trial, cameras will be allowed in future prosecutions. The rule is still on the books that all parties in criminal prosecutions need to consent. So, we obviously hope that that change is going forward.

SMERCONISH: Emmy, nice job. Thank you for being here.

PARSONS: Thank you for having me.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some responses throughout the course of the program. Catherine, what do we have? Facebook, "The difference is that O.J. was famous and there was no video of the crime."

No, Nancy. What could have been more famous than in passing George Floyd? I don't believe that was the case and even if I accept your premise that this was different because now, we had video, well, we hope that there will be video of these sort of crimes going forward, but I don't want a standard that says, well, if there's video, we'll put it on TV.

The Supreme Court of the United States, somebody can fact-check me on this, I don't think they've ever said that there's a First Amendment right for a camera to be present, but the court has said that you and I have a right to walk in and attend a criminal trial. Why does it not naturally follow that obviously we can't be in courtrooms all across the country, but a camera can be? And you know who ought to set the precedent? The Supreme Court of the United States because Senator Specter was right.

Up ahead, in the wake of the Derek Chauvin conviction, police conduct is under intense scrutiny. With retirements surging and a shortage of recruits, will the situation only get harder to fix? I have two of America's most experienced -- most experienced and respected police chiefs coming up.

As well as last week, America again obsessed with mass shootings and then, as usual, we moved on.

[09:10:01]

Why does nothing ever change? Well, part of the answer lies in a 2008 Supreme Court decision known as Heller and the current justices' political leanings. I'll explain.

Plus, this, should Washington D.C. become the 51st state? The House voted yes, but Republicans in the Senate are sure to block it, in part because its population leans so heavily Democratic. I'll talk to the congressman who said objections to D.C. statehood are racist and I want to know what you think. Go to my website at Smerconish.com and answer this week's survey question. Should the U.S. establish a 51st state called Washington, Douglass Commonwealth?

(COMMERCIAL BREAK)

[09:15:01]

SMERCONISH: This week's events raised many concerns over police misconduct all across the country. So where do we go from here? On Tuesday, former police officer Derek Chauvin found guilty of all three charges against him in the killing of George Floyd. He'll be formally sentenced on June 16 and faces potentially decades in prison.

But less than an hour before the verdict was announced, an officer in Columbus, Ohio shot and killed 16-year-old Ma'Khia Bryant after officials say she attempted to stab two females with a knife and then on Wednesday in North Carolina, 42-year-old Andrew Brown Jr. was shot and killed by deputies who were attempting to serve search and felony arrest warrants.

So, it's clear now more than ever that police conduct needs to be addressed, but how? Joining me now to discuss are two of America's most respected, most experienced law enforcement experts, former two- term New York City police commissioner and CEO of the Guardian Group Ray Kelly and former Philadelphia police commissioner and former D.C. police chief Charles Ramsey.

Chief Ramsey, let me start with you. Unions are an issue. In fact, in 2017, "The Washington Post" took a look at how often, in big city departments, those who've been fired for misconduct had to be reinstated because of the strength of police unions. We'll put that chart up on the screen as I ask you does any of that change in the aftermath of Chauvin.

CHARLES RAMSEY, FORMER PHILADELPHIA POLICE COMMISSIONER/FORMER D.C. POLICE CHIEF: I don't know if it changes in the aftermath of Chauvin. It should change. There's no question about that, but if the process and the system doesn't change, then the answer to that is going to be no. It is not easy to get rid of a bad police officer. We fire them, they go through a arbitration process -- which is behind closed doors, by the way.

You were just talking about, you know, shedding a little light on trials through cameras. Well, the arbitration process is very, very quiet and these arbitrators will make decisions that will make you just shake your head in disbelief and bottom line is the officer gets back, but not only do they get back, oftentimes they get back with back pay and even lost overtime is credited. So, it's very, very difficult, but it does need to change.

SMERCONISH: Chief Kelly, how do we fix that?

RAY KELLY, FORMER NYC POLICE COMMISSIONER/CEO, GUARDIAN GROUP: Well, with some difficulty. There's no question about it that I think chiefs or CEOs, commissioners need more power to get rid of problematic police officers. You know, you can see a pattern where someone may have 30, 40 complaints against them where the average is maybe two or three in a -- in a career.

Those types of people have to be identified and there has to be some sort of mechanism to have them expelled from the police department, maybe to another job in government, but most of the power to do that lies in state legislatures and that's where it's going to have to take place. I don't think it's going to happen anytime soon because police unions are powerful. No question about it.

They make donations to campaigns. They're pretty savvy as to how to -- how to work both in state Houses and in Washington, but it is something that needs to change.

SMERCONISH: Chief Ramsey, that's the end of the road, that's the firing process. Let me now go to the hiring process because in today's "Philadelphia Inquirer," there's a quote that jumped out at me from the head of the New Jersey Police Benevolent Association, the largest state union in New Jersey. It's on the screen right now. "Every action has a reaction. When you vilify every police officer for every bad police officer decision, people don't want to take this job anymore."

I can't tell you, Chief Ramsey, how many callers to my radio program this week said I'd never take that job, meaning in law enforcement.

RAMSEY: Well, you know, it's a difficult time. There's absolutely no question about it, but it's also an opportunity. That same article, I believe Philadelphia is down 268 officers, but we have to get smarter about how we recruit and market and target populations of individuals who we think would make good police officers and these are people who probably never thought about law enforcement as a career.

I happen to be one of them. I wanted to become a doctor when I was a young person and accidentally became a police officer, but we need people with a service mentality. I really see this as an opportunity. This is a time, a unique time, when change is really going to occur. You can be a part of that if you join us. You can be a part of something very special.

Instead of standing on the sidelines complaining about police, become a police officer and make a difference in your community and that's the way we ought to approach it. Not a woe-is-me type of situation, but an opportunity to improve the profession.

SMERCONISH: Chief Kelly, I'm trying to run through some of the big picture issues and relying on comments that I've heard all week long. So here's another for you. Do you have a concern that police officers will now be too hesitant, including too hesitant to use force, deadly force if necessary, because of all of the attention on so many of these different cases?

[09:20:09]

KELLY: Sure. Police officers are hesitant across the board. They're demoralized, they're confused, they don't know what the public wants them to do. They've been demonized in the press, demonized on social media. So, they've backed off. They're not engaging in the way they used to pre-the death of George Floyd and we see the result of this. We see a record rise in homicides last year, 30 percent nationally.

So yes, they are backing off in all sorts of ways because they're concerned about their well-being, their family's well-being and I think that's what's brought about the rise in shootings and murders, and this continues this year as well. So, I'm not as optimistic as Chuck is on recruitment. I think it's a real crisis. We have to really do some hard work in thinking about how we can attract qualified police officers.

I'm concerned that we may lower the standards just to get sufficient number of bodies. So, this is a real crisis for law enforcement with no easy answer.

SMERCONISH: Chief Kelly, a follow-up for you because there's a broken window question here and New York City has a record in that regard. I was reading a Heather Mac Donald opinion piece in "The Wall Street Journal" that put this in my head today. Should traffic stops be reconsidered, as an example, or do you think, hey, sometimes that which we overturn because of, say, a missing inspection or registration, a tag issue, leads us to other things? Can you see now a debate taking place where some say don't pull cars over?

KELLY: Well, I'm told in the U.K. that there are very few car stops. They do it all through technology. So, let's see if the -- if technology can do a lot of this, but I think you have to be concerned that if there are no car stops, no law enforcement involvement, people simply won't get licenses. They'll just go and violate the traffic laws in many ways, not register their vehicles. So, you have to think this -- think this through.

It is no question a dangerous thing for police officers to make stops. We've seen that in the -- in the recent past with the killing of a state trooper in New Mexico and other locations. Cops don't necessarily want to do it. They've been required to do it. So, let's see if there is an alternative. Right now, I don't think we're there.

SMERCONISH: Chief Ramsey, same question to you, but with an additional component. In the George Floyd case, of course allegedly it all began with a counterfeit bill. Now some folks are saying, you know what, maybe police shouldn't be the ones to respond in a retail circumstance. Should we narrow the field of when the police get called?

RAMSEY: Well, I mean, there are some instances where police don't need to necessarily be the first responder, but there are many instances where it's appropriate for police to respond. I think the problem here is that we've lost the balance. Because of these high-profile cases, the George Floyd type cases with Chauvin and so forth, there's no real balance and when we look at policing now, it seems like we're really -- people are actually painting all police with a very broad brush, you know?

They're looking at the very worst in the profession, such as a Derek Chauvin, and they're kind of painting everybody with that same brush and, you know, we've allowed the few to define the many and somehow, we've got to be able to turn that around. There are ways in which issues can be addressed short of police officers showing up on the scene.

But you mentioned the Bryant case for an example. That was one where it was already out of control. It was very violent behavior. Do you really think a social worker or a mental health -- or a mental health professional would have been able to deal with that situation under those circumstances? I don't think so. So, it's not that easy, but we do need to think about what we want our police to do and I think that's legitimate to have that conversation, but then the issue has to be transferred somewhere else and the funding has to be in place in order to make it real. SMERCONISH: Commissioner Kelly, give me the final word. Take my last 30 seconds and tell me, big picture, what is it that you most want people to know

KELLY: Well, I want people to know that policing is a noble calling, a noble profession. Police officers save lives every day. We saw a classic example in that Columbus, Ohio shooting. Just imagine if we didn't have body cameras, though, to record what happened there. It would be a major, major event. As it is now, even people are complaining what that police officer did. He's a hero.

[09:25:03] So policing is a calling. They do great work. I'm just concerned now about recruiting and whether or not we're getting the right people into the business.

SMERCONISH: Commissioner Kelly, thank you. Chief Ramsey, I thought you really distinguished yourself all 14 days of that trial. It was no BS ...

RAMSEY: Thank you.

SMERCONISH: ... straight down the middle. You offered the opinion as you saw it and I really appreciated what you had to say on CNN.

RAMSEY: Thank you. Thank you.

SMERCONISH: Nice to see you both. See you, Commissioner Kelly. What are you all saying on my Smerconish Twitter and Facebook pages? What do we have, Catherine? From Facebook, "The police kill about 1,000 people a year. There are 330 million people and a million cops. No one talks about that. Wish you would." Lisa, you just did. "Chauvin should rot, but generally, law enforcement does its job and is terribly understaffed. We are headed for big problems if we lose the good ones."

Well, Lisa, that's exactly the point that I was making by drawing reference to that story that I just read today where the head of the New Jersey Police Association said, hey, you know, people aren't going to want to take this job. Obviously, we got to weed out the worst of them. My former colleague here, Tom Fuentes, who rose 30 years to the ranks of assistant FBI director, is the one who made the point to me that, unfortunately, some bad seeds among us are drawn to the prospect of having a gun and a badge and the lights and sirens and so forth.

Got to weed them out of the process, but obviously support the good overwhelming majority who are willing to risk their lives for us.

Up ahead, Democrats want to make room on the American flag for one more star as they push for Washington D.C. statehood. During Thursday's vote on the House floor, the debate sparked racial tension. I'll speak to the House Democrat who confronted his Republican colleagues. Please make sure that you're voting at Smerconish.com, answering this week's survey question. Should the U.S. establish a 51st state called Washington, Douglass Commonwealth?

(BEGIN VIDEO CLIP) REP. MONDAIRE JONES (D-NY): One Senate Republican said that D.C. wouldn't be a, quote, "Well-rounded, working-class state." I had no idea there were so many syllables in the word "white."

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:31:34]

SMERCONISH: Drama unfolded on the House floor on Thursday over the push for D.C. statehood. House Democrats voted to make portions of Washington, D.C. the 51st U.S. state. It would give the district's 700,000 residents something they have never had a voting member of Congress and representation in the U.S. Senate. But Republican opposition ensures the proposal probably dead on arrival in the Senate? Perhaps because two senators elected from D.C. would almost surely be Democrats.

The House vote devolved into heated arguments after Democratic Congressman Mondaire Jones condemned objections to D.C. statehood as racist. He took aim in particular at two remarks. One from Republican Senator Tom Cotton who said that granting statehood would prevent D.C. from becoming a -- quote -- "a well-rounded working-class state." And another from Congressman Jody Hice who griped that the district doesn't have a number of factors including landfills.

(BEGIN VIDEO CLIP)

JONES: Mr. Speaker, I have had enough of my colleagues' racist insinuations that somehow the people of Washington, D.C. are in incapable or even unworthy of our democracy. One Senate Republican said that D.C. wouldn't be a -- quote -- "well-rounded working-class state." I had no idea there were so many syllables in the word white. One of my House Republican colleagues said that D.C. shouldn't be a state because the district doesn't have a landfill.

My goodness, with all of the racist trash my colleagues have brought to this debate I can see why they are worried about having a place to put it. The truth is there is no good faith argument for disenfranchising over 700,000 people, Mr. Speaker, most of whom are people of color.

UNIDENTIFIED MALE: Mr. Speaker, I move the gentleman's words be taken down.

(END VIDEO CLIP)

SMERCONISH: GOP House members, as you can hear, erupted in opposition, asked for Congressman Jones to agree to have his remarks stricken from the congressional record. He consented but said that the GOP's objections are all about fear.

Congressman Mondaire Jones joins me now. Congressman, thank you for being here. Is it necessarily racist to oppose D.C. statehood? JONES: In the case of the debate today it is. Because when you listen to the explanation set forth by my Republican colleagues you can see quite clearly that they are not offered in good faith. And the fact is, and something that I'm hoping people increasingly become aware of, is that if you oppose systems of white supremacy, each if you do not consider yourself to be racist you are engaging in racist activity.

There are 700,000 people in the District of Columbia, more than in the state of Wyoming and Vermont. And so, the idea that we would disenfranchise those people, that we would tax them without representation, something we fought in the revolutionary war, by the way, is unconscionable. And when you compare the states that we have enfranchised with the District of Columbia and the demographics there overwhelmingly people of color it is -- it is quite a sinister thing.

SMERCONISH: Well, I think I heard you say that to oppose it today is necessarily racist and you probably know where I'm going with this. When the first vote was taken on D.C. statehood in 1993, a majority of Democrats joined Republicans in opposing it.

[09:35:05]

Were they racists?

JONES: Right is right and wrong is wrong. And so, as I mentioned earlier people can come to a place of enlightenment as many people who voted in 1993 have now come to today saying, you know what? That was the wrong thing to do.

To uphold a system that disenfranchises 700,000 plus people is voter suppression on its face. And it is something that we need to be rectifying today especially you know what's happening throughout the country. In 43 different states attempts to suppress the right to vote of black and brown people including SB 202 in Georgia was famously became law a month or so ago.

SMERCONISH: If D.C. attains statehood as your advocating must Puerto Rico necessarily follow?

JONES: Puerto Rico is a completely separate question and is something that many of the members of Congress of Puerto Rican descent are engaging in a very increasingly high-profile debate (ph) over (ph). I think if the people of Puerto Rico want statehood, then they should become a state.

SMERCONISH: What of the solution that some have proposed recognizing that Congresswoman Eleanor Holmes Norton doesn't get a vote and there is no Senate representation as you've reminded us, why not take a portion of what currently compromises the district, give a portion of it to Maryland and a portion of it to Virginia allowing for a more narrow district to remain as prescribed by the constitution so that the folks who live in the district today do have Senate representation and a voting member of Congress?

JONES: Do you mean why apply a double standard to the 700,000 plus people in Washington, D.C., most of whom are people of color? I mean, because that is the question, frankly. In Wyoming and in Vermont, for example, as I mentioned earlier, there is actually a smaller population than what is in Washington, D.C. and, yet, those states have two senators, as well as congressional representation.

Let's stop making exceptions for people of color in a way that has adverse implications for them. Let's enfranchise by making --

SMERCONISH: Right. But the -- but respectfully the exception wouldn't be made in the case of Wyoming because -- what was it? Article 1, Section 8 of the constitution didn't say anything about Wyoming. It said we are going to create a district for the administration of government. You get the final word.

JONES: Yes. Respectfully, I think your response is not something that addresses the issue of those two states having more representation, which is to say really any representation because delegate Holmes Norton can't even vote on legislation, unfortunately. And the difference between those two states, aside from the fact that they have less -- that they have less, fewer people than in Washington, D.C. is that they are overwhelmingly white states.

This is an issue of racial justice in addition to being an issue of democracy. And we must stop disenfranchising people of color in this country. It's time to stop doing that.

SMERCONISH: Congressman, thanks so much for being here.

JONES: Thank you for having me.

SMERCONISH: Let's check in on your tweets and Facebook comments. Remember this is the survey question fodder for the week.

Smerconish, the only reason people want it to become a state is for more votes and representation for Democrats. Let's just call it what it is -- a power grab.

Eric, it might be that in the minds of some. By the way, do a little bit of reading. There's a great CNN piece that has been written by one of my colleagues. Damn it. I thought I had it right in front of me but I don't. Explaining the historical perspective and how in the past, you know Republicans have wanted a particular state or territory. Democrats have wanted for political reasons, but you still do have the issue as the congressman points out of 700,000 people who are lacking representation, especially in the U.S. Senate.

What I was trying to say though at the end is, in part, it's for a constitutional reason, right? It was determined by the framers that there would be this district established. And if the logic is one of, hey, we've got 700,000 people here, that's a large body of people, you know, you could have southern California break off and say, we want to now create our own state. I'm only suggesting it's a very complicated question.

Please make sure that you're voting at Smerconish.com right now on today's survey question. "Should the U.S. establish a 51st state called Washington, Douglass Commonwealth?" That is the proposed name. Still to come, why can't legislators do anything monumental about America's rampant gun violence? In part because with the 2008 decision by the Supreme Court regarding the words of the Second Amendment and with help, I'm about to explain.

(COMMERCIAL BREAK)

[09:44:03]

SMERCONISH: What a difference a week makes. Last Saturday, we were reeling in the aftermath of another mass shooting. The one in Indianapolis that cost eight people their lives at a FedEx plant. And I said last Saturday that I was resigned to the fact that this is who and where we are. And, indeed, the Indianapolis tragedy was quickly knocked out of the headlines by the Derek Chauvin trial and other news.

Meanwhile, there have been other shootings, bringing the total mass shooting in America just this year to over 150, according to the Gun Violence Archive. Well, I want to revisit the question of whether fundamental change with regard to guns is possible in this country. And joining me now is Joan Biskupic, the CNN Supreme Court analyst, and author of several books on Justices Roberts, Scalia, Sotomayor and Sandra Day O'Connor. She recently wrote for CNN.com about the 2008 landmark Supreme Court case called Heller. Joan, thank you for being here.

[09:45:00]

What was the Heller case? What does it stand for?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Good morning, Michael. It was the first time the Supreme Court declared that the Second Amendment contains an individual right to own guns, not that it was a right of the militia, like state and National Guards. Until that moment, lower courts had always presumed there was no individual right to firearms.

Justice Scalia wrote in the 2008 case, decided by just a narrow 5-4 vote, that the framers of the Second Amendment believed that citizens, individual citizens possess that right. Now one thing I have to caution you on, though, Michael, because I heard your intro about how states can't regulate weapons these days because of that. Scalia actually wrote that this right is not unlimited, that, you know, state governments, Congress can still regulate firearms. It's just a question of is there a true will out there, Michael, to regulate firearms this way.

SMERCONISH: Right. I think -- I think I said -- I hope I said in a monumental way. Because that's -- I'm not talking about, you know, registration.

BISKUPIC: Yes.

SMERCONISH: I'm not talking about background.

BISKUPIC: Yes.

SMERCONISH: I mean like in a big way. I want to try and make a point that you may or may not buy into. In 2004 Lynne Truss wrote a bestselling book. Put it up on the screen. The title of the book was "Eats, Shoots & Leaves" or was it "Eats Shoots & Leaves." And it drove home the point how grammar, punctuation makes a difference.

Now put on the screen the words of the Second Amendment because here they are. And this is what we are talking about. "A well-regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed."

Is the second half of that sentence -- just leave it up for a moment, Catherine. Is the second half of that sentence dependent upon the first? What can you tell us, Joan?

BISKUPIC: I can tell you I love that you put that up because, you know, isn't that a confusing set of, what, you know, 27 words? And what Justice Scalia did was invert things to say, the reference to the well-regulated militia at the beginning of that Second Amendment is not the modifier for the second. And also, I should say it wasn't just --

SMERCONISH: Uh-oh. I think Joan froze for a moment. Hopefully, we get her back. She is not back. OK. OK. So here is the point that I would make while you're leaving that on the screen.

I would argue -- oh, she is back. OK. I'd much rather hear from Joan than have people hear more from me. We lost you for a moment. Go ahead and make your point.

BISKUPIC: OK. What I'm going to do is make the point saying that it wasn't just the words and the comments there, Michael. It was what he said the framers wanted.

But I actually have to make one other important point to you about you were exactly right that there cannot be monumental change right now because of that Second Amendment interpretation. But you should know that there are plenty of people in America who are now petitioning the Supreme Court to go further. There are appeals up at the Supreme Court that say we want you to rule not only that folks have an individual right to bear arms for safety in the home as the Heller case said, but now out in public. There are petitions up there and there is -- there is a majority on the Supreme Court that is interested in actually expanding that right.

So, I know that you're very concerned, rightly so, about what the court did in 2008 but we are at a moment where they might actually even go further despite what happened in Indianapolis last week, and what just keeps happening in America.

SMERCONISH: Can we also remind folks that Justice Stevens said that he thought it was the worst decision of his career, if I'm not mistaken?

BISKUPIC: That's right. And one other thing you should know about Justice Stevens who passed away in 2019, he said that he was reading those words that were up on the screen, Michael, and he was also applying an originalist view of what the framers wanted in the Second Amendment and he came out the opposite way of Antonin Scalia. So, it just goes to show that, you know, that it's in the eye of the beholder, isn't it?

SMERCONISH: "Eats, Shoots & Leaves." Joan, thank you. That was excellent. I really appreciate you being here.

BISKUPIC: Thank you, Michael.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. And we'll give you the final result of the survey question. Go vote right now at Smerconish.com.

"Should the U.S. establish a 51st state called Washington, Douglass Commonwealth?"

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[09:54:35]

SMERCONISH: Time to see how you responded to the survey question at Smerconish.com. "Should the U.S. establish a 51st state called Washington, Douglass Commonwealth?"

Let's see the results. Wow. Pretty decisive and a lot of voting, 75 percent. I must say I thought it would be much closer that, but I was wrong.

Quickly, some social media reaction, Catherine. What do we have from people who have been watching? The tweeter about a power grab is correct.

[09:55:01]

Mitch McConnell would do it, if it were leaning Republican. I'm sure that there are many acting. I'm so glad that you put that up on the screen. I'm sure that there are many acting for partisan reason.

Republicans, for example, who say, hey, we don't want there to be a guarantee of two more Democratic members of the Senate, or Democrats who believe they would absolutely lock up two more Senate seats.

But I don't think that it's inherently racist. Partisanship and racism sometimes overlap, but not are -- but are not one and the same. I mean, the district exists today because the framers in the constitution called for it. That's why we're having this conversation.

Anyway, thank you for watching. I thought that the guests were excellent today. I'll see you next week.

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