GLENN: Let's go to John Lott. He is the author of More Guns, Less Crime, the actual facts if you want to talk about it. John, welcome to the program. How are you, sir?
LOTT: Great to be back on, thanks.
GLENN: You bet. So tell me what happened yesterday in the Supreme Court and why everybody is so convinced that the Supreme Court is going to rule in favor of gun owners.
LOTT: Well, it's an extremely important case. If the Supreme Court were to say that the D.C. gun ban doesn't infringe on people's right to be able to own a gun, essentially there would be no gun regulation that could ever be struck down and so a lot's at stake at this. And the two questions that the Supreme Court is basically looking at, one, is it an individual right or not. And if it is, is it the same -- should it be treated the same as the rest of the Bill of Rights. And it seems pretty clear from the discussion yesterday that a majority of the justices think it is an individual right. Even Ruth Bader Ginsberg, should be interested to see how NPR, begin what you're just saying, would deal with that.
GLENN: She's hot.
LOTT: Seems to believe it's an individual right. Justice Kennedy came swinging right out at the beginning saying that this notion that somehow the Second Amendment was set up to go and guarantee government certain rights, you know, just didn't make any sense to him. And so someone who you might normally think of as the swing vote, a key swing vote there seemed to be very solidly in the camp of saying that this is an individual right.
GLENN: Explain the two -- explain the two things that are in front of -- okay. First, is it an individual right, I got. The second one, if it is, should it be treated the same as the rest of the Bill of Rights?
GLENN: Why wouldn't it be?
LOTT: Well, you know, you and I would think the same way on that, but the Justice Department kind of threw a monkey wrench into this when they put their brief in a couple of months ago. They were arguing that, you know, words can't really hurt people that much, guns can and so for example, just comparing the First and the Second Amendment, you shouldn't give the same deference to the Second Amendment as you would to the First because more's at risk there and you should be more willing to accept government regulation of guns because of that than regulation of free speech. And just so people understand, we're really given constitutional decisions these days. Nobody's really talking about not having regulations with guns. You take something like the First Amendment where it says congress shall make no laws. That seems pretty clear. But yet congress has -- or the Supreme Court has gotten to the point where it said that if -- what they are really saying is congress shall pass, make no laws unless it has a good reason for doing so and so we have things like campaign finance regulation. And the question is where do you set the bar in terms of saying how good do those reasons have to be. How compelling, how closely tied do you have to show that the regulation that you're having is connected to the outcome that you want to produce. And the Justice Department worried that it might affect some of the gun regulations that it enforces, that it wants to have a sufficiently low standard that maybe even the D.C. gun ban would be able to pass constitutional muster. And --
GLENN: Wait a minute. Hang on, hang on. The DC gun ban.
GLENN: You cannot have a gun inside of your own home. You can't even have an assembled rifle inside of your home, correct?
LOTT: That's right.
GLENN: So I mean, it's effectively no guns.
LOTT: Right. I understand. I'm not trying to justify the Justice Department opinion on this and --
GLENN: I just want to make sure that I'm clear on this. This is the Bush Justice Department.
LOTT: Right. There's been so much strangeness that's going on here. I don't know if you know this but Vice President Cheney signed a brief essentially opposing the Bush Justice Department's position on this. He came out and said not only is this an individual right but it should be treated just as the rest of the Bill of Rights are treated and this is the first time in American history that a sitting vice president has signed an amicus brief and not only has he signed an amicus brief for the Supreme Court, he's come out against the Justice Department position on it. And last week there was a column by Robert Novak which I guess if it's true is quite remarkable because he was quoting people in the Bush administration saying that the solicitor general had taken a position that Bush didn't agree with but rather than going and telling the solicitor general to withdraw his brief on that, Bush had essentially signaled to Cheney to put in his own brief to indicate that the executive branch was not of one voice agreeing with what the Justice Department was going to be arguing yesterday.
GLENN: So how do you think this is going to come out, John?
LOTT: I think they are going to say it's an individual right and I think by at least a 6-3 vote but I have no clue where they're going to draw the line in terms of saying with standard what weight should be given to the Second Amendment compared to the rest of the Bill of Rights. There was enough doubt, Justice Roberts didn't even want to deal with that issue and there were some questions among some of the others. So on that who knows what's going through their mind right now.
GLENN: So this could actually, this could in one way be a win that it is an individual right but then at the same time we could lose because they could say, "And the Government can regulate it any way they want."
LOTT: Right. That's a possibility.
GLENN: That's fantastic. And what does it mean, John, to New York and Chicago if they just come out and say, no, the DC gun ban is wrong, you can't do that? Does that mean that --
LOTT: Well, there would be a few other cases. All this is would be a very narrow decision that said, look, having a gun ban is going too far. Where we're going to draw the line after that, you are going to have to have other cases to decide and my guess is some place like Chicago there would be a suit filed very quickly afterwards saying that their ban, which is almost as restrictive as DC's, is also unconstitutional.
GLENN: John, can you explain where the turn came and why we are looking at -- why our Supreme Court is looking at -- instead of the words of the founding fathers, instead of the intent of the founding fathers -- I mean, jeez, we'll look for the intent of a hanging chad voter but we won't look for the intent of the founding fathers, which is very clear.
GLENN: Why we now look at evolutionary law, why we now look at the law and say, well, let's look at this last case and this last case. Why don't they look at what the founding fathers said and believed because it was clear.
LOTT: I agree with you. As you say, look at the First Amendment, says congress shall make no law. What would they have had to have written if they really meant that? Say congress will never, ever make any law with respect to this? But I think what's happened is that people like power and so if the Supreme Court were just to go and say, well, this is what the First Amendment means; if you want it to be something different, then amend the Constitution. Or with regard to the Second Amendment it seems pretty clear to me, also, then there wouldn't be these types of cases. What's happened is I think judges and justices like to be policy makers and so they like to introduce grayness in things and so rather than just taking absolute standards, which is what the Constitution tried to set up, they set up these balancing tests where you have to go in and go and argue: Well, I think there are good reasons that maybe we should get around the words that are in the Constitution and then the justices have, you know, policy information, data and empirical evidence that they can go in and weight the different classing benefits of changing these different things. I mean, it's just a natural evolution. In some sense we're lucky that it took 160 years or so before we began to see this change in our courts because truly the temptation was there earlier to go and get power that would have been -- belonged to other branches of government earlier.
GLENN: One last question. I don't know if you are a betting man at all. Odds that we significantly hurt the right to own and carry a gun in this country with this decision.
LOTT: I think -- I'm optimistic on this. I think that we'll win with regard to individual right clearly, and I'm pretty optimistic, though, you know -- I don't know. I would say 60% or something that we'll do well in terms of the standard.
GLENN: All right. John, thanks. John Lott, author of More Guns, Less Crime. If you want to get down to the facts of guns, which nobody wants to do, read that book. It's tremendous. John, thanks a lot for your time.
LOTT: Thank you very much.