Guest: Phil Zabriskie, Paul Rieckhoff, Eugene Volokh, Bob Bennett, Eugene Volokh, Sam Reed, Joaquinn Avila
DAN ABRAMS, HOST: Coming up: The Pentagon says a suicide bomber is probably to blame for the deadliest attack on U.S. troops in Iraq. The bomber blew himself up in a mess hall as hundred of troops sat down to lunch, killing 22, including 18 Americans. The question: How did he get inside? And for the first time ever in any administration, the Department of Justice finds there‘s a constitutional right to own a gun. They have a memo to back it up. And we debate. Plus, it‘s deja vu al over again, another election decided by the courts. One of the closest governor races in history comes down to a state supreme court ruling that was issued only hours ago.
The program about justice starts now.
Hi, everyone. First up on the docket, Pentagon officials now say that a suicide bomber was almost certainly to blame for the deadliest attack on Americans since the invasion of Iraq, 18 Americans among the dead, dozens wounded. Here‘s NBC‘S Brian Mooar.
(BEGIN VIDEOTAPE)
BRIAN MOOAR, NBC CORRESPONDENT (voice-over): At Ramstein air base in Germany, soldiers wounded in deadliest attack yet on a U.S. air base in Iraq begin the long journey home. At the Pentagon, U.S. officials say the attack on the forward U.S. base in Mosul appears to have been the work of a suicide bomber.
GEN. RICHARD MYERS, JOINT CHIEFS OF STAFF CHAIRMAN: At this point, it looks like it was an improvised explosive device worn by an attacker.
MOOAR: The blast in a crowded dining hall killed 22 people. Dozens more were wounded. There‘s evidence the shrapnel came from parts from a rocket.
UNIDENTIFIED MALE: We think that the ball bearings came out of a particular munition.
MOOAR: An Islamic militant group claimed responsibility on its Web site.
Here in the States, more soldiers are getting ready for their turn in Iraq. At Camp Shelby in Mississippi, another wave of Guard troops heads off to an uncertain future.
MELISSA TANKSLEY, FAMILY SUPPORT GROUP: Our children have had to say goodbye time and time again.
MOOAR: A lucky few are home for Christmas. At the Vietnam Veterans Memorial in Washington, one Iraq veteran paid tribute to his comrades still under fire.
SGT. CRAIG BARRON, FORT HOOD, TX: That‘s my other family. I mean, you know, I‘m glad I got to come back for the holiday, that it was God‘s will, but at the same time, you know, I want to go finish the mission.
MOOAR: Brian Mooar, NBC News, Washington.
(END VIDEOTAPE)
ABRAMS: Both General Myers and Defense Secretary Rumsfeld said they had warned the situation in Iraq would worsen leading up to next month‘s election. And Rumsfeld went on to say we should not expect to see less violence any time soon.
(BEGIN VIDEO CLIP)
DONALD RUMSFELD, DEFENSE SECRETARY: I think looking for a peaceful Iraq after the elections would be a mistake. I think our expectations level ought to be realistic about that. These folks have a lot to lose. The extremists and the terrorists and the people who are determined to try to take back that country are determined not to lose. And it is going to be a—they‘re going to do everything they can to see that that opportunity they have succeeds. And we‘ve got to do everything to see that they fail.
(END VIDEO CLIP)
ABRAMS: All right, “My Take.” First and foremost, let me just first say how tragic this is for the families involved here. Hard-working soldiers away from their family sitting down for lunch, the next thing they know, there are limbs flying, screams and groans. It‘s awful. And my heart literally goes out to them.
All right. With that said, what I want to know is how a suicide bomber can get into a base in Mosul. It‘s a base near the most dangerous city for Americans, so it‘s not like it should be surprising that someone would try to get away with something like this. Joining me now, MSNBC analyst retired U.S. Army colonel Jack Jacobs, and we‘re joined by “Time” magazine‘s correspondent Phil Zabriskie. He recently returned from Iraq where he was embedded with the Marines.
Gentlemen, thanks very much for joining us.
COL. JACK JACOBS, U.S. ARMY (RET.), MSNBC MILITARY ANALYST: Good to be here.
ABRAMS: All right, Colonel, you were one of the first to say that this was likely a suicide bombing. How does someone like this get in?
JACOBS: Well, with great ease, I should think. The place is full of Iraqis in the camp. They want them in there. They hire them to do the work around the camp, slinging mashed potatoes, cleaning up the place, building the new mess hall out of concrete.
ABRAMS: How do you avoid—there‘s got to be a way to vet these people.
JACOBS: Well, you‘re supposed to. I mean, General Myers‘s contention today that they rely on the chain of command—that is, the Iraqi chain of command—in order to vet these other Iraqis doesn‘t help very much if the Iraqi chain of command is not skilled at doing that. And anybody who decides that he wants to work for the Americans can get himself into a compound like this, and then the rest of it is relatively easy, as well.
ABRAMS: You said you saw this in Vietnam, as well.
JACOBS: Oh, yes. You frequently had enemy soldiers or informants in American compounds. They pass on information to the enemy about where you‘re going and where the convoys were going, and so on, pretty much the same as this. And the net result was ambushes or...
(CROSSTALK)
ABRAMS: There‘s nothing—I mean, there‘s nothing that can be said that, Look, we can do X, Y or Z to help prevent...
JACOBS: Oh, there are plenty of things to do. We have to realize that we may have to do with a lesser level of creature comforts, maybe not a big tent, maybe not a concrete bunker in which to eat meals. Maybe we don‘t have to have the place cleaned up, and so on.
The second thing is, it doesn‘t make a lot of sense to me to have a
large American compound full of American troops—and Iraqis, by the way -
· so close to an urban area which is extremely difficult to secure, unless you‘re willing to go out there with your troops and secure the urban area. If you‘re not willing to do that, then the compound needs to be further away.
ABRAMS: Phil, when you were embedded, I‘ve got to assume that there were Iraqis that you saw who were working with the American troops. Anything that you saw as to what they did to try to insure that the people that they chose were on the right side?
PHIL ZABRISKIE, “TIME” CORRESPONDENT: I think that they did try to vet them to some extent, but there was only so much they can do. And I think that even in situations where they had translators or people working even more closely with the military, they had a lot of difficulties, as well, with the Iraqi national guard and the Iraqi police.
ABRAMS: When you say a lot of difficulties, give me some examples of some things you saw.
ZABRISKIE: Well, I mean, you know, in terms of the Iraqi police, they don‘t—the troops I spent—the Marines I spent some time with in Ramadi, for instance, they don‘t much trust the police at all. And there were instances where one guy who was directing traffic for a few hours then jumped in his police car and rammed a convoy and it blew up. In another case, there was a translator who was later found to be tipping off raids and battle plans to the insurgents in the town.
ABRAMS: Let me play this piece of sound from General Myers talking about this today—No. 1.
(BEGIN VIDEO CLIP)
MYERS: This attack, of course, is the responsibility of insurgents, the same insurgents who attacked on 9/11, the same type of insurgents who attacked in Beirut, the same insurgents who—type of insurgents who attacked the Cole, Khobar Towers, and the list goes on.
(END VIDEO CLIP)
ABRAMS: You know, I don‘t know if that‘s particularly helpful, Colonel.
JACOBS: No, it‘s not helpful. It‘s a very silly thing to say. And my guess is that he regretted saying it after he said it.
ABRAMS: Why?
JACOBS: It‘s just—well, because it‘s patently false, demonstrably false, and it casts a pall over everything else that he says. I mean, if you know—if you know that that‘s not right, anything else he says, obviously, is not going to be right, too. So it‘s—it didn‘t help him very much, either.
ABRAMS: All right. Colonel Jacobs, if you could stick around for a minute. Phil, if you could also stay with us.
Coming up, we‘re going to get an inside look with a soldier who just returned from Iraq, who says he‘s surprised this type of attack didn‘t occur—it is so hard. I got to tell you—I mean—oh!
Justice Department declaring that there is a constitutional right for every individual American to own a gun, not just groups such as the military, something that I don‘t agree with as a legal matter. We‘ll debate and ask, Does that mean that all gun control laws are now unconstitutional?
Plus, did you know there‘s still a major election being fought right here in the U.S.? That‘s right, Washington state battling over its governor. The vote is close as 8 votes out of 3 million. A big ruling today from that state‘s supreme court may have just decided it.
Your e-mail, abramsreport@msnbc.com. Please include your name, where you‘re writing from (UNINTELLIGIBLE)
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
MYERS: We have no front lines. The front line can be the dining hall, it can be the road outside the base, it can be the police station or the governor‘s office or the mayor‘s office down in Mosul. That‘s their territory. They operate all over that. They can wear, and they do wear, clothes like every other Iraqi. It‘s a much different thing, and the mindset has to be much different.
(END VIDEO CLIP)
ABRAMS: The Pentagon today confirmed that the most deadly attack on Americans in Iraq was likely caused by a suicide bomber, not by a rocket, as initially suspected. Twenty-two are dead, including eighteen Americans. Dozens are wounded and being flown out of the country to be treated for their injuries. All this while the country‘s in turmoil, getting ready for elections next month.
We‘re joined now by Iraq war veteran and executive director of Operation Truth, a troops and veterans advocacy group, Paul Rieckhoff. Mr. Rieckhoff, you see this happen, and I know it‘s got to just break your heart to see something like this happening, troops sitting down for lunch. Based on what you saw while you were there, was there any way to better assess which Iraqis are the good guys and which ones aren‘t?
PAUL RIECKHOFF, IRAQ WAR VETERAN: You know, that‘s really the toughest part of it, sir, is that you never really know who the good guys are and who the bad guys are. That‘s the toughest part of the situation that our folks are facing in Iraq right now. Inside a forward operating base like the one that was hit, you‘ve got Iraqis everywhere. You‘ve got people serving chow. You‘ve got people pouring concrete. And you‘ve also got the Iraqi soldiers that we‘re training. It‘s a lot of gray area, and you never know who to trust. And this is a tough situation that they face every single day in Iraq.
ABRAMS: If you could talk to the brass and they said to you, What do we need to do better, what do we need to do differently to prevent something like this from happening, what would you say?
RIECKHOFF: Well, the first thing I would say is you need to harden those targets. It was obvious that this was a very soft target. It‘s a tent. Any mortar round or rocket or bomb can go right through that. And we‘ve seen that the Pentagon has really been slow to respond to the soldiers‘ needs on the ground, whether it was body armor in the first rotation or Humvee armor and truck armor now. They‘ve never really been honest with the American people about the evolving threat on the ground. The insurgency is very tough, and it‘s getting stronger, and our folks need the best possible equipment to face that threat.
ABRAMS: Tent a problem, Colonel?
JACOBS: No, I don‘t think so. I think the biggest problem is one of tactics and strategy. At the end of the day, whether the mess hall is a hardened bunker or whether it was in the open air would not have—it didn‘t matter. Wouldn‘t have saved any of those soldiers. At the end of the day, what we really need to do is determine what it is we‘re trying to accomplish, allocate the appropriate forces in order to accomplish it and then some, more than we need, and go about accomplishing it.
The first principle of war is objective. And the objective ought to be the enemy, and we ought to kill and capture the enemy. Absent that, I can‘t see how the security situation in Iraq is going to improve any time soon, with hardened—with up-armored Humvees or hardened bunkers or anything else.
RIECKHOFF: I would agree absolutely, sir. I think that that‘s really the core issue, is that there aren‘t enough people there, and the people that are there are dramatically overstretched. They‘ve underestimated the threat. They‘ve underestimated the insurgency. And they‘ve underestimated the commitment that we need to be successful in this mission. So I would agree with you, sir, absolutely.
ABRAMS: Final question to Phil Zabriskie. Based on what you saw—how long were you there, first of all, Phil?
ZABRISKIE: I was there for a year, in central Baghdad.
ABRAMS: And did—I assume you saw, at some time or another, a situation go awry.
RIECKHOFF: Yes. Absolutely. And to be honest with you...
ABRAMS: Let me ask Phil Zabriskie this, from “Time” magazine. Go ahead, Phil.
ZABRISKIE: A situation go awry? If you mean ambushes and battle...
ABRAMS: Yes.
ZABRISKIE: ... situations, yes.
ABRAMS: And what was—what—give us a sense of what the response was on the ground when something happened. Were things changed? Were strategies changed? Did things happen differently then the next day?
ZABRISKIE: No, I don‘t think so. And the specific instance I‘m thinking of was in Ramadi, where they have several bases throughout and run a supply line through town every day. And they usually go along the same route for at least part of it. Sometimes they vary in it segments, but they have to go at a certain time, and it‘s to deliver food. And this convoy gets attacked quite often.
ABRAMS: This is what General Myers had to say about more about what happened.
(BEGIN VIDEO CLIP)
MYERS: We have had a suicide bomber apparently strap something to his body—apparently a “him”—and go into a dining all. We know how difficult this is, to prevent people bent on suicide and stopping them. We understand how difficult that is. But I think—this was the insurgents that did this. It‘s not General Ham that attacked his dining hall. I think he has a very good plan for force protection. I know what some of the long-range plans are up there. This is an insurgency.
(END VIDEO CLIP)
ABRAMS: All right, I just wanted to put that in there to make sure our coverage is being fair to the administration‘s perspective, as well, here. Colonel Jacobs, good to see you. Thanks for coming on the program.
JACOBS: Good to see you.
ABRAMS: Phil Zabriskie and Paul Rieckhoff, thanks a lot.
ZABRISKIE: Thank you.
RIECKHOFF: Thank you, sir.
ABRAMS: Coming up, gun rights advocates cheering the Justice Department finding that it‘s the right of every American to own a firearm. It‘s a first from any administration with regard to the 2nd Amendment. I say it‘s just wrong. We debate. And we announce the winner of our “Name Our Segment” contest. One of you will be the lucky recipient of all of this MSNBC—all of this can be yours.
(COMMERCIAL BREAK)
ABRAMS: Those who believe that the 2nd Amendment to the Constitution gives every citizen the right to own a gun just got a big endorsement from the Department of Justice. Last week, the DoJ made public a memo explaining its interpretation of the 2nd Amendment. It‘s the first Justice Department that we know of to have interpreted the 2nd Amendment to mean that every individual has a constitutional right to own a gun.
The 2nd Amendment reads, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” But for over 100 years, not—more courts have interpreted it as a right that belongs only to individuals serving as part of a well-regulated militia, now in the form of the National Guard, hardly the sort of right an individual could claim to own a gun.
But the DoJ claims, quote, “The 2nd Amendment secures a personal right of individuals, not a collective right that may only be invoked by a state or a quasi-collective right restricted to those persons who serve in organized militia units.” As a practical matter, if an individual has a right to own a gun, it could very well mean that many gun control laws are unconstitutional.
“My Take.” All right, without taking a specific stance on gun control laws, because that‘s a separate issue for me, let me restate something I said while in law school. In an article I wrote in the “Yale Law and Policy Review” many years ago, I said, quote, “The 2nd Amendment was enacted to insure that the federal government did not completely usurp the power of the militia. In the 2nd Amendment, ‘militia‘ is explicitly qualified by the words ‘well-regulated‘ and by the phrase ‘being necessary to the security of a free state.‘ The relationship to organized military service becomes paramount. It‘s undoubtedly true that the Framers envisioned men keeping weapons in their homes for use in the militia, but their 2nd Amendment right to do so was conditioned upon service as part of a military force.”
I went on to say, “When the 2nd Amendment was written, a well-regulated militia was a body comprised only of white men between the ages of 18 and 45. Do the individual rights proponents maintain the 2nd Amendment offers no protection to older people, blacks and women?”
Joining me now to debate, constitutional law professor at UCLA Eugene Volokh, who agrees with the Justice Department interpretation, and constitutional law scholar and former dean of the Northwestern University School of Law Bob Bennett, who agrees with me.
All right, Professor Volokh, let me start with you. As a practical matter—let‘s first talk practically—doesn‘t this Justice Department interpretation mean that many, if not all, gun control laws could be declared unconstitutional?
EUGENE VOLOKH, CONSTITUTIONAL LAW PROFESSOR: The Justice Department has taken the view in the past that, in fact, most federal gun control laws are constitutional and that only a few might be unconstitutional. And that actually makes sense. I think that there is an individual right to bear arms just like there‘s an individual right to free speech, or since we‘re talking about the rights of people, a right to be free from searches and seizures, right to assemble, both rights of the people secured by the Bill of Rights, but they are subject to some regulation. So in fact, there are a lot of gun control measures, such registration, for example, that I think would be maybe unwise but would be quite constitutional.
ABRAMS: Why...
VOLOKH: So this is a matter—so the issue really has to do with total gun bans. In D.C., it is illegal to have a gun in one‘s home that‘s ready to use in self-defense.
ABRAMS: All right, before we...
VOLOKH: That would be unconstitutional.
ABRAMS: Before we get just into the constitutional, Professor Bennett, I mean, it seems to me if you‘re saying that every individual has a constitutional right to own a gun, there‘s a huge burden to overcome there for almost any gun control laws.
BOB BENNETT, CONSTITUTIONAL LAW SCHOLAR: You‘re asking me whether...
ABRAMS: Yes.
BENNETT: ... whether that‘s right? Well, we don‘t know what kind of burden there is because this is entirely untested. The memorandum, which I haven‘t had a chance to examine in detail—but the memorandum apparently acknowledges that many regulations are permissible. But it‘s entering into uncharted territory, where the possibility you suggest, that regulation would be quite limited, would be opened up. And that seems to be...
VOLOKH: On the...
ABRAMS: Hang on. Let him finish. Let Professor Bennett finish.
VOLOKH: Sure. Sorry.
BENNETT: Yes. I—it just seems to me to open up a hornets‘ nest that would be best left where it is.
ABRAMS: Go ahead, Professor Volokh.
VOLOKH: Well, on the contrary, actually, 44 of the 50 state constitutions have right-to-bear-arms provisions. The overwhelming majority of them have been interpreted as securing the right to bear arms in self-defense. In fact, gun control measures have been challenged under those provisions and have been usually upheld. There have been a few exceptions, but by and large, reasonable gun controls are viewed as constitutional.
What‘s more, you know, you could make the same argument about the 1st Amendment or 4th Amendment or 5th Amendment. If we only have an individual right to free speech or be free from searches and seizures, that opens up a hornets‘ nest to all sorts of restrictions on speech, and all sorts of searches and seizures would not be unconstitutional.
ABRAMS: But...
VOLOKH: Well, that‘s right. That‘s the nature of the Bill of Rights.
ABRAMS: That‘s right.
VOLOKH: Its purpose is...
(CROSSTALK)
ABRAMS: It does increases the burden. I mean, if you view—that‘s right. The 1st Amendment and...
VOLOKH: It increases...
ABRAMS: ... the 4th Amendment basically say that if you‘re going to
do something—for example, take away something from someone, take away in
any way the right to speak or the right to be free from search and seizure
· you‘ve got to survive a very, very high burden because there‘s a constitutional protection.
VOLOKH: Well, not necessarily a very high burden. For example, for the 4th Amendment, the test is one of reasonableness. And in fact, actually, quite a few regulations would be allowed. I actually think the “well regulated militia” language is relevant, and it does suggest that a lot of regulations would be allowed. But we must remember this is a right of the people. Constitution doesn‘t say a right of the states or a right of the National Guard, it says a right of the people.
ABRAMS: Yes, but Professor Bennett, the clear answer to that, it seems to me, is that when you‘re talking about people, sure, you‘re talking about people, the right of people who are part of a well-regulated militia to have guns.
VOLOKH: But that‘s not what the 2nd Amendment says! It says...
ABRAMS: Oh, it sure is.
VOLOKH: ... the right of the people...
ABRAMS: Let‘s put it up again. Let‘s put it up again. “A well regulated militia”—can we put it up one more time—“being necessary to the security of a free state”—that‘s how it starts. That is the purpose of this amendment—“the right of the people to keep and bear arms shall not be infringed.”
The reason that this amendment exists is to make sure that a well-regulated militia is able to continue protecting the security of a free state. As a result of that, the people have the right to keep and bear arms, the people who are members of militias, well-regulated.
VOLOKH: No, no, no. But now you‘re reading something into it. It says the right belongs to the people. The prefatory provision...
ABRAMS: So you‘re saying...
(CROSSTALK)
ABRAMS: You‘re saying ignore the beginning!
VOLOKH: No, no!
ABRAMS: The beginning doesn‘t matter.
VOLOKH: No, no, no!
ABRAMS: Forget about it.
VOLOKH: No, no. Because as you pointed out in your article, the militia was not the National Guard. The militia was essentially, at the time, the able-bodied adult citizenry...
ABRAMS: So you would then say that only white men between 18 and 45 should be able to own a gun today. Because if you‘re going to go back to the original intent...
VOLOKH: Of course not.
ABRAMS: ... then that‘s what we‘re going to apply.
VOLOKH: The original intent has been changed by the 14th Amendment...
ABRAMS: Oh!
VOLOKH: ... to extend the same rights—no, no. But this is fully understood. Most rights were not understood, for example, as belonging to blacks in the Bill of Rights. But of course, that has been changed. The 1st Amendment has been modified...
ABRAMS: All right, I got to let...
VOLOKH: ... by the 14th Amendment to make clear that it applies equally...
ABRAMS: Professor...
VOLOKH: ... regardless of race and of sex.
ABRAMS: Professor Bennett, it seems to me that the Justice Department and Professor Volokh are picking and choosing which elements of the modern-day interpretation they like, and they adopt those and reject the parts that they don‘t like.
BENNETT: Well, I‘d go further than that, although I‘m not sure you need me.
ABRAMS: Sorry. I apologize.
BENNETT: No, no, no. You‘re doing great! It seems to me that Professor Volokh also picks out those portions of the language of the amendment that he likes and those that he doesn‘t. There‘s no word of guns. The word “gun” doesn‘t appear in the amendment, it‘s “arms.” So you read the amendment and you try to figure out what somebody passing that would have meant. Would he have included atomic bombs?
You obviously have to, as you were just saying, interpret this amendment in light of its purposes as applied to the modern day. There is no escape from that exercise in interpreting a constitutional provision. And it will not do to say that the 1st Amendment obviously will have to be limited in some ways—that is, speech will have to be limited in some ways—and that‘s all right. We‘ve got a different amendment here that has got to be applied to a different set of problems, and different not only from the 1st Amendment set of problems but different from the problems that existed at the time the amendment was passed.
ABRAMS: Let me take a quick break here. I‘ll let Professor Volokh respond in a minute. Professor Bennett, also stick around, please.
Coming up, more on this issue. It‘s a big, big—I mean, it‘s the first time the Department of Justice has taken a potion this strong, the Department of Justice saying there is a right to own a gun, not just the right to own a gun but a constitutional right to own a gun. That‘s what we‘re debating.
And all eyes are on Washington state right now as that state‘s supreme court could determine who‘s the next governor. That‘s right. The election seven weeks behind, and they are still fighting over the recount. The results have come back as close as an 8-vote—I said it right -- 8-vote difference.
(COMMERCIAL BREAK)
ABRAMS: We‘re back. We‘re talking about a Department of Justice memo which is basically saying that every American doesn‘t just have a right to own a gun, but a constitutional right to own a gun. We‘re not debating gun control laws here, ladies and gentlemen. Let‘s be clear. We‘re talking about the Constitution. Let me read you from the Department of Justice report.
“We conclude the 2nd Amendment secures an individual right to keep and to bear arms. Our examination of the original meaning of the amendment provides extensive reasons to conclude that the 2nd Amendment secures an individual right, and no persuasive basis for either the collective right or quasi-collective right views.”
I‘m joined now by, again—once again by two professors on both sides of this, common law professor at UCLA Eugene Volokh, who agrees with the Justice Department, and Bob Bennett, who used to be the dean over at Northwestern University law school.
All right, Professor Bennett, this is much more far-reaching, in terms of the Department of Justice‘s position, I think, than we‘ve seen in any Department of Justice in history, right?
BENNETT: Well, I don‘t know what other Departments of Justice have said. That‘s my understanding, is that this is the first time it‘s been associated as an individual constitutional right. From what I‘ve read, it is very much hedged, even this memorandum by the Justice Department, to suggest that regulation would be broadly accepted and permissible. So we don‘t know what this means.
And quite frankly, I mean, I don‘t mean to be unduly cynical, but this strikes me as more of a political rhetoric than it is a serious constitutional analysis.
ABRAMS: Professor Volokh...
VOLOKH: Let me just say this...
ABRAMS: ... I assume you disagree with that. Go ahead.
VOLOKH: So the right to bear arms is specifically said to be a right of the people. Throughout the 19th century, it was understood as an individual right virtually without dissent. Into the 20th century...
ABRAMS: Really? Let me read you from—let me ready you from...
VOLOKH: Absolutely.
ABRAMS: ... an opinion, then, U.S. v Cruikshank (ph)...
VOLOKH: Absolutely.
ABRAMS: ... U.S. Supreme Court position. “Bearing arms for a lawful purpose is not a right granted by the Constitution. This is one of the amendments that has no other effect than to restrict the powers of the national government.” In 1939, U.S. Supreme Court, U.S. v Miller—“In the absence of any evidence tending to show that the possession or use of a shotgun having a barrel of less than 18 inches in length at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the 2nd Amendment guarantees the right to keep and bear such an instrument.”
VOLOKH: So...
ABRAMS: And in U.S. v Lewis (ph), “Three (ph) legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do the trench (ph) upon any constitutionally protected liberties.”
Sorry. Go ahead.
VOLOKH: So Cruikshank, the first case you quoted, you quoted it out of context because it turns out that the case also talked about the 1st Amendment and said the same thing about the 1st Amendment. Cruikshank involved the 1st and the 2nd Amendments, and all that the Court said was, at the time, the Bill of Rights applied only to the federal government. It may have secured individual rights, and in fact, the Court treated the 1st and 2nd Amendments as identical for this purpose...
ABRAMS: But you have to agree there was...
(CROSSTALK)
ABRAMS: There was never an opinion—I apologize, but there was never an opinion until 2001 from the 5th Circuit Court of Appeals that has ever declared—a U.S. court of appeals, federal—that has declared that there is a constitutional right for an individual to own a gun. Is that fair?
VOLOKH: On the contrary.
ABRAMS: OK. Go ahead.
VOLOKH: Throughout the 19th century, the Supreme Court referred to an individual right to bear arms on many occasions.
ABRAMS: You mean like in the Dred Scott case?
VOLOKH: So—that is one case, but if you look later on, in the Robertson (ph) v Baldwin (ph) case in the late 1800s, where it catalogued a set of individual rights simply incidentally to show that they are not unlimited. They treated...
ABRAMS: But it wasn‘t saying...
(CROSSTALK)
ABRAMS: ... individual as opposed to as a member of a militia.
That‘s not a fair characterization. The question here is...
VOLOKH: Oh, no. On the contrary...
ABRAMS: ... is it a right that...
(CROSSTALK)
ABRAMS: Is it a right—look, I agree with you that those who say it‘s a right that belongs to states are wrong. We‘re talking about a right that belongs to individuals, though, who are part of this organization.
VOLOKH: The Supreme Court has treated it that way in the 19th century. It‘s true that around 1939, there was some retreat from (UNINTELLIGIBLE) even the Miller case is ambiguous, in part because as the Court specifically held, the militia was not a national guard. The militia was essentially the adult armed citizenry. And that‘s why there was not much tension between the two (UNINTELLIGIBLE)
Incidentally, as to Justice Departments, Franklin Roosevelt‘s attorney general, in testimony to Congress, treated the 2nd Amendment as an individual right. Abraham Lincoln‘s attorney general, in arguments to the Supreme Court, treated the right to bear arms as an individual right.
ABRAMS: Yes, but...
VOLOKH: In fact, actually, when the U.S. Supreme Court has cited the 2nd Amendment, it has actually quoted the right to bear arms phrase, of the 30 times that it‘s cited, 25 times -- 20 to 25 times...
ABRAMS: Yes...
VOLOKH: ... and only about 5 to 8 times did it actually even mention the militia clause.
ABRAMS: Right, because a lot of the time...
VOLOKH: So that‘s why—that...
ABRAMS: Right, because a lot of the time, it wasn‘t relevant to the issue they were dealing with, and so it wasn‘t necessary to mention it.
VOLOKH: But they were referring it as a right to bear arms and a right...
ABRAMS: It is a right to bear arms...
VOLOKH: ... of the people to bear arms, just...
ABRAMS: It is a right to bear arms.
VOLOKH: Well, but you‘re—but in fact, that‘s not how you‘re interpreting it.
ABRAMS: All right...
VOLOKH: You‘re interpreting it as essentially providing no protection to individuals, and that is exactly...
ABRAMS: No, that‘s not what I‘m saying. I‘m saying...
VOLOKH: ... what the Bill of Rights...
ABRAMS: ... it‘s a right of individuals who are, as the amendment says, part of a well-regulated militia. I‘m just going to say one other thing about this, and this is about this thing called the Dick (ph) Act, which came in 1903. Congress passed it. It divided the militia into an organized militia to be known as the National Guard and a reserve militia, which later statutes have referred to as the unorganized militia. And of course, my question was, if you‘re going to divide it into organized and not organized, you got to admit then the well-regulated militia has got to be the organized militia...
VOLOKH: On the contrary!
ABRAMS: ... which is the National Guard.
VOLOKH: That, actually, I think shows the—that actually shows the error of—of...
ABRAMS: Final word, 10 seconds.
VOLOKH: ... the interpretation you‘re providing.
ABRAMS: Go ahead, Professor.
VOLOKH: And the error is that you‘re saying the Congress could essentially take away the 2nd Amendment right by simply redefining the militia. So it‘s a weird sort of constitutional right that Congress, by enacting a statute—Congress, the entity that‘s supposed to be constrained by the Bill of Rights...
ABRAMS: Yes, well...
VOLOKH: ... you‘re saying now could eliminate or diminish. That‘s not a sensible way of interpreting...
ABRAMS: No, I‘m saying that the militia is pretty clear what it is today, and I think for anyone to suggest that we are going to—we‘re still having a militia the way it used to exist—in the same way other constitutional rights have evolved, so has this one.
But let me tell you something. I know a lot of you—because I‘m getting tons of e-mails from all of you, and I really appreciate it. I respect Professor Volokh on this. I did write a law review article on this, took very seriously the other side. Professor Bennett said before that I didn‘t need him on this one, but he‘s been great to have on the program. And Professor Volokh is always smart as heck and a lot of fun to have on the program. Appreciate it.
VOLOKH: Thanks very much.
ABRAMS: Coming up, another election, another supreme court ruling decides who the winner will be. This ruling came just hours ago, and one state will finally have a winner nearly two months after the election. And last night, a father whose son died in Iraq pleaded with Yahoo! to let him read his son‘s e-mails. Yahoo! said no. Many of you weighing in on both sides of this. “Your E-mails.” And we announce the winner of our contest.
One of you has named our new segment, and we will—and you‘ll get these -
· oh, I mean, come on! The winner gets these prizes.
(COMMERCIAL BREAK)
ABRAMS: We‘re back. Five hundred and thirty-seven was the difference in votes between George Bush and Al Gore in 2000. So close. And the U.S. Supreme Court had the final say. It happened again today, sort of. Believe it or not, more than a month-and-a-half after the election, Washington state still does not have a governor-elect, with both Democrats and Republicans haggling over literally every vote, to the point where last night, the Democrats had claimed victory by eight votes out of nearly three million.
They‘re now in the third round of vote counting. The Republicans had won the early vote count and the first legal battles in the state supreme court. But Democrats, King County and the Republican secretary of state appealed a ruling from a lower court, a ruling that had stopped more than 700 absentee ballots from being evaluated in heavily Democratic King County because of apparent problems involving signatures.
Both sides argued the case before the state‘s highest court this afternoon. Here‘s the special counsel for the secretary of state.
(BEGIN VIDEO CLIP)
THOMAS AHEARNE, LAWYER FOR WA SEC. OF STATE: It is the right of the voter, not the political party, that is paramount. That is what the people on that war memorial died for, and that is what this court should enforce.
(END VIDEO CLIP)
ABRAMS: And that is what the court did just hours ago, ruling that the absentee ballots will be counted. That count is now set for tomorrow morning, and the state will soon know whether Democrat Christine Gregoire or Republican Dino Rossi will be the new governor.
“My Take.” This comes down to following the technical rules versus the will of the voters. Those 735 absentee votes were not counted because of a mistake by election officials. As it turns out, 600 or so of the 735 are legit and should have been counted. Now, you can argue that you can‘t recount votes that were never counted in the first place. I think it‘s far more important to make sure every vote is counted and that the true will of the people is reflected.
I‘m joined on the phone by Sam Reed, Washington state‘s Republican secretary of state, and Joaquinn Avila, a Seattle University law professor and an expert in voting rights advocacy. Gentlemen, thanks very much.
Mr. Secretary of State, let me start with you. Why—I think a lot of people would say, Boy, as a Republican secretary of state, you‘re arguing with the Democrats. I would assume that irked the state Republican Party.
SAM REED ®, WASHINGTON SECRETARY OF STATE: Well, yes, it did irk the state Republican Party, but I have been absolutely consistent throughout this whole process. In fact, last week, the Washington state Democratic Party sued me and went to the supreme court. And I argued that when you do a recount, you cannot go back, start all over again recanvassing every ballot that had been rejected.
But we have a safety valve in the state of Washington, where our county canvassing boards, made up of the chairman of the legislative body, the prosecuting attorney and their chief election official, do have the right, and indeed, the responsibility to correct any mistakes that have been made by the county before they certify the election. I won that last week against the Democrats. And now once again today, we went in and presented the same arguments because now the Republicans didn‘t want these to be counted in King County. And we prevailed again.
ABRAMS: Well, good for you for playing it straight. I got to tell you, I wish more secretaries of state would try to enforce what they believe is the correct law, as opposed to simply going for one party or another.
All right, Professor, how close is this as a legal matter, in terms of the balancing, to what happened in Bush v Gore?
JOAQUINN AVILA, VOTING RIGHTS ATTORNEY: Well, there are big differences. I think what this points out is that there‘s a tremendous need to have electoral reform across the country. And the big difference between what happened in Florida and here is that here we‘re dealing with a gubernatorial election.
But more importantly, we‘re dealing with the application of a statute that applies across the state, where all the canvassing boards do have the authority to go back and correct mistakes. And that, in fact, is what they did and what King County did. And in Florida, you had a different situation, where you had different standards being implemented for counting the votes. I guess as a legal matter, there might be a possible equal protection argument if you have...
ABRAMS: I apologize for interrupting, but I‘m almost out of time. As a practical matter, when you‘re talking about counting the votes here, they did do something that they shouldn‘t have done technically, right, in the sense that when the first votes were counted, these absentee ballots should have been counted the first round, and the Republicans were essentially saying, Look, they‘re supposed to be counted in the recount. You can‘t go back and try and find more votes.
AVILA: Yes, that‘s correct. And I think they prevailed in that argument in terms of the first state supreme court decision. However, there is—but that decision was subject to the provisions of this Section 210, which was the subject of the second appeal, and it was that Section 210 that permitted the canvassing boards to correct mistakes. I mean, you need a process to correct mistakes.
ABRAMS: Right. And I think that‘s great. Look, I wanted to spend a lot more time on this. I just got so caught up in that 2nd Amendment debate that I feel so passionate about. So I apologize to Secretary of State Reed, who I congratulate his effort in this regard. And Professor Avila, thanks a lot for taking the time.
REED: OK. Thank you, Dan.
ABRAMS: Coming up: Justin Ellsworth e-mailed his family regularly before he died fighting for his country in Iraq. His father told us why he wants Yahoo! to let his family read his e-mails. Yahoo! said no. Many of you writing in on both sides.
And the envelope, please. We have a winner in our “Name That Segment” contest. Over 4,000 of you actually completed entries, and one of you will soon be the owner of all of this great MSNBC stuff.
(COMMERCIAL BREAK)
ABRAMS: Time usually allocated for my “Closing Argument” is going to our contest to name our segment in a moment.
But first, “Your Rebuttal.” Last night on the program, we told you about a Marine in Iraq who sent e-mails to family and friends letting them know he was OK until he died in November. Now his family wants to save his e-mails. But he used Yahoo! as his e-mail provider, and according to Yahoo!‘s terms of service, all accounts are terminated upon death. I said I‘m just not convinced that we know whether the son, whether Justin would have wanted this. And who knows what he wrote in those personal e-mails? He signed an agreement with Yahoo! and agreed his account would be destroyed. Many, many of you writing in about this one.
Maggie Shayne in New York—“If that young soldier had wanted his parents to have access to his e-mail, all he had to do was give them his Yahoo! password. It‘s that simple. He didn‘t do so.”
From North Carolina, Cierra Whaley. “God forbid I should pass away tomorrow, I would not want my family or anyone else having access to certain e-mails. That‘s why I have a private password.”
Sean Watson in New Jersey. “Some people open up such accounts for the very purpose of keeping some or all of the e-mail messages they send and/or receive away from everyone else, except those that they sent the individual messages to or received individual messages from.”
California, Lisa Kennedy. “Not even my attorney sister reads all the privacy policies you have to check to sign up for things on the Internet. Yahoo! should have a heart and let the Ellsworth family have their son‘s last words!”
Roger Dean in Georgia. “I‘m sure if it was found out this soldier had committed a serious crime ... that these Yahoo! e-mails would be made available to any and all legal authorities ... Why should the authorities be more important than a family whose son gave his life for his country?”
Also last night, the anti-terror bill, and one part of it sparking debate, national standards for driver‘s license. Some on the right and left saying this is paving the way for a national ID. They say it could intrude on privacy rights. I said I don‘t get what all the fuss is about. If you don‘t have an ID, you just don‘t have to get a driver‘s license then.
From New Jersey, Amy Toleno. “Why would you or anyone want all their information accessible by anyone who has access to their driver‘s license? Do you really believe all government is legit? You‘re either naive or a complete idiot. It amazes me that someone so ignorant (or stupid) can have a television show.”
I will go with idiot and ignorant.
Kevin Siner in Virginia. “I‘d like to ask the ACLU and all others opposed to a national ID card to give up their passports. I see no problem with a national driver‘s license, national ID card or simply a standard for states to follow.”
Coming up in 60 seconds, we announce the winner of our “Name That Segment” contest.
(COMMERCIAL BREAK)
ABRAMS: And now to the part of the show we know you‘ve all been waiting for. We asked you to rename our new segment highlighting the lighter legal stories out there. We‘ll tell you the story in a moment for today. But first we‘ve got introduce the segment‘s new name and tell you who won. Remember, we came up with the name “Legal Light” but thought you could come up with something better.
Nearly 4,000 of you sent in your official entries. We sorted through all of them, and we‘ve got a winner. The winner will get this beautiful MSNBC merchandise.
Before we announce the winner, first the runners-up. Jennifer Dixon (ph) from Indianapolis, Indiana, sent in the name “Good Grief Brief.” We liked that one. Susan Cohen (ph) from St. Louis, Missouri, sent in the name “Law and Odder.” And one of my favorites—this was the runner-up, but my producers told me I probably couldn‘t pronounce it correctly, “Unbelegalable” sent in by Russ Ball (ph) from Farmington, New York. Sorry, Ross. You were so close.
May I have the envelope, please, for the winner? Thank you, Jamie (ph). And the winning name for our new segment is “Oh Pleas!” Get it? As in plea? Carol Longard (ph) from Oakland, California, came up with the winning name. Congratulations, Carol. This MSNBC loot is headed your way just in time for the new year.
“Oh Pleas!” You get it? P-L-E-A, like a plea in court? All right.
Now to our first—now to the first story in our “Oh Please!” segment about a fast food worker who spent a lot of time supersizing. It used to be that you worried about a fast food worker maybe spitting in your food if they didn‘t like you. Well, a Utah man is accused of double-swiping the credit cards of irritating customers who came through the Taco Bell drive-through where he works.
He allegedly double-swiped credit cards five times, putting in different amounts on the second swipe, anywhere between $20-30. It‘s an expensive Taco Bell. The employee didn‘t indicate how the customers annoyed him. Maybe he just didn‘t like the ones who asked for extra hot sauce. All right.
Congratulations again to Carol. If you have any suggestions or stories that will make us say, “Oh Pleas!” e-mail us, abramsreport@msnbc.com.
That does it for us tonight. “HARDBALL” with Chris Matthews is next.
See you.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
END
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