regardless of one might think about abortion, the fact is the right is recognized within the timeframe, and therefore, it is the woman's right to choose whether to have the procedure not the doctor right to determine it is medically necessary. >> >> since the case started there's been a change in circumstances for the open carry in california. is your suit premised on the change in the law or as you found it when your client wasn't allowed to concealed permit? >> if they have changed the theory has not. >> just a minute. it seems to me that if i am to apply the law that existed to the kerry that existed at the time in your client wasn't -- open carry that existed at the time in your client wasn't giving this concealed permit your client could have open

carried, if you will, an unarmed weapon and could have carried some ammunition to put in the weapon. now they can't carry either. does your case live or die on that change? >> if anything it's become stronger. >> i am just trying to say can i apply the facts as they were at the time your client was denied his permit? are you suggesting i have to change the theory into play the change in the law and if so why not ask the district court again whether you are really right or not? i am just trying to test you. >> the court possibly and didn't really turn on that -- >> i think it did. if i look at the district court did i look at pages eight and nine as it relates to what it

would be that would be available in this particular situation. that would be not in your client's opinion but that would have been in his opinion and page 10 of your opinion. it seems to be based on what the basis of the law was on kerry. >> the basis at the time without the complaint was unchanged. and that is the people have the right to be armed and ready in the case of confrontation. >> but if i am going to apply an intermediate scrutiny to this particular matter, and the law doesn't say anything about the fact that you're allowed to carry whatever you want unloaded in with ammunition, does it seem that is a pretty good basis to suggest that on intermediate

scrutiny it survives? >> no, your honor. let's take the law as it was at the beginning. the ability to carry an unloaded gun is quite useless in fact it's not dangerous. >> i don't know whether it is useless or dangerous because we had a similar case in jackson where our court held that having guns in the closet and ammunition there was equal to anything that was needed and the supreme court did not take any chance to undo that. >> your honor, nowhere in the american tradition of people -- have they carried unloaded guns for self-defense. that is simply not part -- >> where is that in the record? that may be the great argument but i didn't find that in the record anyplace. >> the amendment states people have the right -- >> the second amendment talks about the right to self defense and all we are talking about is

the difference between self-defense in the the loaded or unloaded with ammunition. >> your honor, neither now or then did my client have the ability to carry a functional firearm for self-defense. right now today they certainly can't -- >> what do you mean by functional? >> a gun that isn't disassembled. it is actually loaded and ready to be used. >> loaded and functional are two different things. do you mean functional or do you mean loaded? >> i guess loaded is the list included. we are talking about functional. in fact we had this issue in heller where people are not able to render their arms functional. they had to be disassembled,

to be unloaded and they said this violates the second amendment because there was no exception as in jacksonville was an exception. this is a violation because there was nobody to be totally people could use their gun in self-defense but i would also like to respond to the question that was received earlier about robertson baldwin. we have to look at how they defined the second amendment and i think this is critical. they tell us that to bear arms that as it is used in the second amendment is to carry upon the person in the clothing or in the pocket for the purpose of being armed and ready. those are two separate categories upon the person we can imagine or in the clothing or the pocket that sounds like concealment and so they recognized in the definition of the terms concealed carry can in fact be one way of exercising that right. and as my colleague argued earlier it made it quite clear , as many opinions early in american history, that the states can regulate the manner in which they are carried and

because the state can regulate the manner of the states can tell people you may not open carry, you may not concealed carry. and we don't have a claim that we are entitled in any particular matter. my clients will take what they are given by the the legislature but if the legislature says you can't carry in any way shape or form, for the concealed carry we are going to need a license to to which to or not and which you're not in title but to because we do not recognize self-defense, the generalized interest, then the right has been effectively destroyed. >> let me ask you, your colleague referred to the seventh circuit opinion. but the second -- seventh circuit opinion was looking at the flack dan, correct? >> correct. >> it was the illinois situation with the situation for example in new york, and new york it

seems to me had a good cause provision that's very similar to the county and san diego county , so maybe you can enlighten me on how the seventh circuit lends credence to the argument and why these other circuits, why we shouldn't be looking to them what has been held to the constitution in terms of good cause. >> it wouldn't survive under and perhaps they recognized that for me and acted as a legislative response and created a system. the opinion goes on at length to describe how it is that chicagoans have the same rights to have a gun on the street as much as they do up in their apartment. >> we don't have that. of course he would oppose.

but we don't have that. we have the band with a proviso hanging off of it. >> but the same self-defense interest that secures the right to keep arms in the home is the same self-defense interest that underlines the right to bear arms outside of the home and i don't believe moore has suggested that this type of good cause would be applicable to the right exercise within the home. >> and i'm meaning to exclude the home. because we are talking about outside the home. >> it's the same. if it is a constitutional interest that belongs to the people generally is the same inside as well as outside then there is no way that the law like this that starts in the presumption that the petitioners -- population at large is disabled from exercising a fundamental right could survive . if i may reserve my time for rebuttal.

>> your honor, may i confront the court. i am here with james for san diego county and the sheriff and the sheriff. i am authorized to confirm that the sheriff has not changed his policies or procedures for the issuance of concealed weapons permit pending further guidance from the court. beyond that, he's here to answer any questions for san diego or the sheriff, but otherwise san diego has graciously ceded its time and i will be dividing the time. >> where were you when we argued the case before?

the sheriff now isn't going ahead and we questioned at that particular time, we said does the states know about that? yes they know about that. and we had discussions about whether it implicated the statutory scheme and the state just sat on its hands and lost in here you are. -- and here you are. so suddenly why should we let you intervene at this point? >> we appreciate the ability to be here today. >> we would have liked to have heard from you before. >> whether we are permitted to intervene or not and we appreciate that. we do think we should be permitted given the way that the cases have now become a challenge to the constitutionality of california public hearing schemes as a whole. there are ways the court can and

should resolve the cases that would not have those implications but we are here because two things happened. one, the panel opinion addressed the issues in a way that has a broad significance, and number two, the sheriff decided at that time not to seek the hearing and therefore we made the decision to ask the court to take a second look. >> if we allow that to intervene -- you to intervene, what does that mean for intervention in general? because obviously my understanding of the governor and the attorney general's office are they are supposed to defend the laws that they think are unconstitutional and no one seems to want to weigh in on these political issues as it were and why isn't it too late?

>> with respect, -- >> if there were another case there is no way that they would be able to intervene when they've known about it and when they have clear -- was clearly implicated. >> i agree the circumstances here are unusual and rare and we wouldn't anticipate doing this on a regular basis. >> we used to get cases like this. there is an obligation on the -- to certify that the very federal or state called into question. did the court make that certification? >> i don't belief they were made. we were aware of the case and we -- but i wanted to say was both of these cases as they were presented in the complaint to the district court presented a couple of different avenues and one of them could have been a broad view but more particularly the seem to be focused on the individual exercise of

discretion by the sheriff's in these counties including allegations that the decisions were being made in an arbitrary four based on favoritism. those were not issues we felt had compelling reasons to get involved in the cases. as it turns out the case has been decided on much broader legal grounds and that is why we are here. >> is there a way that the good cause requirement could be interpreted to avoid any kind of challenge to the state statute. the local interpretation. so, as i understand, he is challenging the interpretation by the sheriff. right? i heard him say that. is there a wait you can interpret the statute to avoid the problem that we have here. >> i take it that my friends would be contempt -- content with a -- assertion by any

individual, any law-abiding individual or desire to carry in self-defense. that is not the interpretation that we have put out or that we believe individual sheriffs may put out. it's possible, he argued that there might be some area where a sheriff could make a discretionary decision but i t wasn't quite clear what the grounds with the. -- would be. >> how does the state define good cause in this context? the state of california has no view. >> the statutory structure is to commit the discretion to define good cause and give the responsibilities to find good cause to the local sheriffs because conditions may vary from place to place and they are aware of the local conditions and it may be that the policy that makes sense is different in yellow county or san diego county. >> that is the second amendment

-- >> we don't believe that there is -- there may be a baseline but there's not a one state definition of cause. >> the second amendment doesn't change county to county. right? >> that is correct and we are here to defend the ability of the constitutionality of the sheriff in posing the kind of standard that the sheriff had imposed which is the kind of standard new york imposed under the statute and that's been upheld as you said. >> so, is it the state's view -- doesn't apply in this context? >> i want to be careful. it's not our view that it has no -- that the second amendment has no purchase anywhere outside of the home but with my friends on the other side what like to --

recognized as the right to do exactly what they want which is carry concealed weapons on the public squares in san diego or -- san diego. one thing is the restrictions on -- one thing i'm think makes clear is that restrictions on the concealed carry of lethal weapons, especially in cities and towns, have a long and rich tradition and do not conflict with the basic second amendment right. >> party me. i want to get it right. it is the state's position that the heller right can apply outside of the home. the right of a law-abiding and responsible citizen to use a firearm for self defense can apply outside the home, yes or no?

>> yes, with a qualification which is we think the supreme court has not addressed this or given us any guidance outside of the home. i think it is candidly hard to read heller and, with the thought that there is no purchase for the second amendment outside the home, but i think it is very easy to read to say that the second amendment does not confer a right to the concealed carry of handguns especially in cities and towns. >> both the concealed carry prohibition is supplemented by an open carry prohibition so it equals the total prohibition. what is your position on that? >> the position i am at is twofold. first, there is a lot of historical evidence that in the context of the public spaces in and towns, which is what we are

talking about here, there is a long and rich tradition of the regulation of the ability to carry dangerous weapons including handguns. and we think that history has an elaborated -- in fact drake relies upon it for its holding , so in part we would say there , is a very good argument that categorically we are allowed to regulate open carry, along with concealed carry when we are talking about public spaces in cities and towns. the justices -- >> the justices said that it was a perfect embodiment of the concept and also the louisiana case. both of those were open spaces were they not? >> those were -- i don't know

exactly where the defendant was arrested. my recollection of the case is that the statute applied statewide. without a distinction between -- >> [indiscernible] >> -- and what the court held is that, yes, you can ban concealed carry. now, every town for gun safety bridge, which is been filed recently and goes through a very historically interesting -- my point is not to establish here, i don't know that the record allows us to establish categorically, that we could ban both open and concealed carry. but i do think there is a rich tradition of regulation. and what california is doing here is regulation. it is not a ban. for instance, an unincorporated areas outside cities and towns

except for prohibited areas where you're not allowed to discharge a weapon, you are free to carry open and loaded at your business, your place of business, even in san diego. you are allowed to take a gun there and keep your gun there and carry it there. if you find yourself an emergency and your gun is nearby, you are allowed to load it and have it for that duration. >> if you kill someone in self-defense, the office determines if it was a justifiable homicide but without the exception then you would get charged with having a loaded gun in a public place? i wasn't sure what that exception amounted to. >> it amounts to a statutory exemption from what might otherwise be prohibitions in the narrow circumstances where you are faced with a threatening situation and public aid is not immediately available , and i think it is significant.

but also ordinary activities for firearms ownership outside the home training, sports use, , camping, hunting. all of these are accommodated by the california's team -- by the california scheme, so the fact that you can't get a concealed weapons permit to allow you to walk on the street and in the parks and in the malls into the parking lots of downtown san diego or downtown davis doesn't mean you're right to carry a firearm outside of the home has been destroyed. >> does this assume the change in law that now there is absolutely no carry that is not concealed? whereas prior to this change one could carry, but one could not carry it loaded. does your argument apply to both situations or are we only dealing with the situation which

affronted these plaintiffs? >> i have been arguing for the law because i think it is harder for the state. >> is that in front of us? because i didn't find frankly where that was the case which be fronted the plaintiffs who brought the suit. >> i agree at a time they stop -- sought their permanence and the permits were denied, that was not the law. given the reasons the state's here, we have not approached the case on that basis. we have taken the view that we should defend the statutory structure on the basis of the statutes as they are now. >> i asked previously about the

intermediate scrutiny and the record in this case. how do you respond his argument that the declaration by -- i think the county submitted his affidavit -- >> that is correct. cracks and he said, well, it is really not worth much. >> he -- the affidavit, has in it, a southern expert who is a long-standing and very expensive professor, a variety of statements which do support points that i wanted to get to about the degree of danger that concealed or open carry personal carry and public spaces has imposed. i think you have to understand here that the record was built at a time when the law was very different.

well, that is the main difference. and i don't think it would be appropriate to resolve this case, at least on any broad basis, on the basis of that record. so if the court feels that the record here is not sufficient to support the state and the county positions in the way the case has developed, then i would suggest that the right thing to do is to reverse the judgment in favor of the counties. that said -- >> the council suggested that the evidence is insufficient in the affidavits that we have in front of us. that at that point as i understood his argument, grant him summary judgment. >> i believe that it has -- that is his argument. i don't believe that is the right answer. >> why? >> well, for two reasons. i'm not sure it would be the right argument, but in these

circumstances, which is an issue of very broad significance, if the court is good to issue a ruling, then you should do so either by taking judicial notice of the same sorts of facts that have been recited in the opinions of other courts -- and i will say that the risk imposed by these weapons in public places is a matter of common sense and could be subject to judicial notice -- but if the court issues a broad ruling, it should be done on the basis of a good record. if the court wants to resolve the case in a very narrow way that applies, for example, only to these plaintiffs and gives them their permits, but perhaps leave the sheriff free to build different record, i suppose that you should be open to the court. >> your time has expired. thank you.

>> good afternoon. chief judge,'s, may i approach the court for the county of yolo and the sheriffs -- of yolo and the sheriffs? i would like to begin by addressing judge smith's questions. the law changed after the opening and answering briefs were filed. he referred to it in his reply briefs as cementing a victory for plaintiffs. at the panel level, we were asked, i believe by chief judge,'s, whether or not to present the -- that would prevent the case from going for. and the council agreed that it would not in both cases. in richards, the reason why i took that position was because

as i read the district court's opinion, the changes that had been made in the law and i will address those in a minute with -- would not have changed the district court's view. >> would you explain page eight and nine in the opinion of ten -- and page 10 of the richards opinion where it seems to be that both the district court's put a lot of emphasis on the present policy or the law of california and suggested then that that was maybe some reason why intermediate scrutiny would not strike down the law because they had carry provisions which were allowed then that you simply couldn't put the ammunition with the gun. >> because those exceptions still exist albeit in lesser form they still exist.

yes, they still exist. so the way the current scheme works is different than the old. in the old scheme and in the current scheme, you could carry loaded on private property , business, or residential with permission as long as it was in the public place. when you've got to the public place, like a grocery store or a restaurant as opposed to your lawyer's office or accountants office come -- office, under the new law if you get permission from the property owner or the tenant, you could carry that unloaded. you can still carry that it has to be unloaded. under the old law you could carry with permission.

as long as you are unloaded when you're going down a public street. you can't do that now. now it has to be in a locked container. so those are the two differences. in my view, the differences -- >> as i understand, you can't carry openly anything and what you have to do is get the concealed permit. and if you don't get the permit you can't carry at all. >> that's only for walking up and down the street in the city limit. >> and that's what i understand that the sheriff is putting his regulations to. >> that's true, but you have to remember that the county is 95% rural. so if we are talking about whether there is a substantial burden on a fundamental right and even if we assume that the right to carry a loaded firearm in public was historically

observed, which we would submit is not the case, but even if you assumed it was, it is not a substantial burden if your inability to carry is limited to less than 1% of the county. if you can go to your relatives and friends and neighbors and if you can go to your lawyers and your accountants, your place of business and do all those things loaded, and then when you get to the grocery store or the bank and we will entertain the fiction that those places would allow you to carry a gun regardless of what the state law is, but let's supposed the bank says sure, you can come in with your guns. all that's left are the streets and people don't walk up and down the street just to walk up and down the street, they walk up and down the street to go in and out of businesses. so the burden on the right to carry is only going to be impacted if the business they

are going would let them in in -- in the door with their gun in the first place. so, to me, this burden that is being argued for -- >> people walk up and down the street for a lot of reasons and you have to be going somewhere. >> you don't have to be. >> if you are worried about self defense you can stroll around in the late evening, you can circumvent the park, you can do all kinds of things. but under your theory, that's ok. because if you are in the country, there is no restriction. >> what i am saying is it, yes it is a restriction, but viewed in the totality of where you can carry, it's a small restriction. it's not a substantial burden if you can go 99% of the places you want to go and carry, the fact that you can go to 1% shouldn't be deemed constitutionally problematic. >> do you take the position that

you start with the premise that heller extends be on the home, gives you that constitutional right outside the home, but then you are only nearing it, as you put it, 1% or a very small handful of circumstances? is that the construct or do you not agree? >> i do with adding one layer and that is extending beyond the home and extending to carry in a public area of a city are not the same thing. and we've got extensive scholarly expositions by several of the -- including the league of california cities and every town against gun violence that track the historical progression of restriction on carry in urban areas all the way from colonial through antebellum post

ratification forward. >> that is what is unusual about your argument. i am hearing you concede that heller does not restrict self-defense to the home. >> correct. >> all right so everyone appears to be in agreement about that. but then you seem to be arguing that while yours isn't a very -- is not very restrictive is because you are in a rural area and the danger is in the cities that are very heavily populated and that seems to be the danger , but you are saying you are a rural area. so what is the government interest in -- why is this so dangerous where you are? >> i'm not just saying because it is a rural area. >> i heard you say it isn't as dangerous, so then -- >> i didn't say anything about the degree of danger one way or another. >> ok, so you're not saying that.

>> no. the argument i'm making has nothing to do with what places are more dangerous than others. where the individual chooses to go is my point. in other words, it is not a substantial burden if you can choose to go to most places and still have some right to carry. >> was this all in the record? >> yes. it's in the underlining briefing and again the law changed in the ways i just described. heller talks about sensitive places. this courthouse being one of them. so, you know, it already expresses the idea that at least when you are outside your house, there's going to be more restriction tolerated then there is when you are inside the house. it is interesting because we talked briefly about the moore case, and in the subsequent opinion, the one that came out

after the illinois law was found unconstitutional and then the parties go back because the legislature isn't acting quickly enough to suit the plaintiffs and then in a subsequent opinion that comes out, which is 734 748, judge poser said, quote, we say only that our mandate didn't forbid the state to impose greater restrictions on carrying a gun outside the home that illinois law imposes on possessing the gun inside the home. so even more egg knowledge is that which you are outside the home, the state can regulate more extensively, and we think that is in keeping with the historical precedent that existed from the constitution's founding all the way through the ratification until now. >> so was it intermediate scrutiny or strict scrutiny?

>> if there is no fundamental right to carry concealed in a public place, then it would be rational basis because there is no burden on the fundamental constitutional right. and we think that the other circuits stand for that proposition. and i would throw in the first as well in hightower, which we briefed and one of our supplemental briefings. that court said, that the refusal to issue the concealed carry permits to the retired policemen did not burden the core second amendment right because that doesn't exist for concealed carry. so in this case, we have several layers. we have concealed, and the plaintiffs concealed -- conceded that that's not a constitutional

right. but that language is defining the word, carry. it's not defining the scope of the constitutional right that's in the second amendment that is just a physical description of what does it mean. and that is something more than just to possess, meaning that you are going somewhere. and we feel it's always been treated as more extensive outside of the home. i mean, look at hunting. that is a core second amendment right. heller tells us that. cologne literally -- cologne -- colonially, you had to keep yourself alive by eating just as much as by defending yourself. is there anything that is more restricted in the modern american cities than the right to hunt? >> probably smoking. [laughter] >> there you go. so, sure, it is allowed occasionally and their are some cities where there is a dear

problem -- deer problem and you can get a special permit to hunt within the city limits, but generally i can't do that. i can't go out here and say that is a big fat pitch in and shoot -- pigeon and shoot it. that's allowed and it's not controversial. what california is doing is a spectrum. it is putting aside local ordinances, but allowing full rights inside the home. and pretty much it will on other private property -- friends neighbors, relatives, pretty much equal in the private businesses. then when you get to where people are congregating in the shopping malls, restaurants, department stores, then the regulation gets tighter. then it is open carry, but it has to be unloaded. and finally, you get to the city streets where it is at its most restrictive. but we don't feel in any way that that could be deemed a dysfunction of a fundamental

right because it's not a fundamental right historically and there is no disruption -- this function. at most there is a burden, not a substantial one but yes there is a burden. far less than on hunting or smoking. [laughter] >> in richards, which is your case, what was the evidence presented that would suggest that the law that was enacted relates to the interest of the city or county determines they have? >> the only evidence was a declaration from the undersheriff that basically gave the sheriff reasons for why they were concerned about issuing a carry permit to anyone that just put down -- >> that is what i thought. so, if in fact, the declaration of the undersheriff is not sufficient to apply the

substantial interest of the county, then what at that point do i do? >> well, unless you found that there is a fundamental burden -- or excuse me, a substantial burden on a fundamental constitutional right, it wouldn't be a problem. >> even if supposing i get to the fact i have to imply the intermediate scrutiny and i now get to the idea that applying the intermediate scrutiny there is a government interest, but i can't find any way the -- where the government interest was related to what you did. >> i think the declaration relates it. >> if it doesn't, then watch it i do? >> both sides move for the summary judgment so if you find that neither side had sufficient evidence to want the judgment, then we have to send it back.

>> is there any evidence from the plaintiffs in your particular case? >> no. >> was there any declaration? >> there were declarations to describe the process they went through. but nothing about a particular need. that wasn't their argument. their argument wasn't that they have a special need. their argument was i a desire -- i desire self-defense and i'm not otherwise disqualified by the lack of virtue of criminal record or lack of training, etc. thank you. >> we will give you three minutes. >> thank you, your honor. i think i have three points. the first is the most important because if i heard the other side correctly they concede the second amendment applies outside the home and the either conceded or came as lay close that a ban on both open carry and conceal

carry would be unconstitutional. so then the question that becomes very important is the scope of open carry under california law. and he gave you an accurate half half of the story, but i want to tell you the other half of the story. which is under the new law you have open carry permit in the cities which is what they want to talk about, but then he also told you it's in the prohibited areas of the unincorporated parts of the the county so that means the key word is prohibited areas and that is defined in the california code of 17303 to basically mean anywhere you can't discharge a firearm. and the problem is that almost everywhere. that's the street, anywhere near a dwelling or in unoccupied welling, or a car or in unoccupied car. so please don't decide this on the presumption that you can carry openly and 85% of the

county. because you can't carry openly in the prohibited areas in the unincorporated areas and that's almost anywhere you would almost get. if you are on the grid, on the streets, near the dwelling you cannot carry openly and that's why this is the situation we are -- where we are not asking for the constitutional right to carry. we are asking for the constitutional right to have some mechanisms to exercise with -- what my friends concede we have, which is the right to self-defense outside of the home and that is being forbidden to us almost anywhere that we can get on the grid. the second point is to be responsive on why the case is significant. it's actually less significant than i thought it would be. the judge explains why it is the that -- the second amendment extends outside the home. and some of the other circuits

decided the case on the summary that it doesn't or that we are sort of on that question. so the constitutional right to carry does extend outside of the home. if you think about the cases that are out there, there is the second and third and fourth circuit cases. there is the seventh circuit case, and i will grant you that it is somewhat different, but california is not like new york or new jersey -- >> [indiscernible] >> i mean it's not just generally, but to the statute. what makes it so different i think is that it leaves it up to the counties. unlike the states where they make this decision on a statewide basis and assemble a statewide case for why this is so to public safety, california doesn't, with all due respect care that much. they leave it up to sacramento county and it's perfectly constitutional. and the record here is not enough to satisfy strict scrutiny or intermediate scrutiny. thank you.

>> we will put three minutes on the clock. >> thank you, your honors. i would like to make three or four points in a limited time. the council of the other side he alluded to the arguments of those in the historical basis for this type of law. the average town does a fantastic job of marshaling evidence for the proposition that they have the right to carry guns. but there is no historical basis for this law that dates back earlier than as the court found the early part of the 20th century when new york and new jersey enacted those regulations. the last word from the supreme court at that time was that the second amendment didn't apply to the state and so it cannot be that we look to the legislative behavior of the legislatures of the time as evidence to help -- how people understood the

second amendment rights. if the voters or jurors consulted the guidance on the second amendment, they would be told that they are not completely exempt from having to be concerned about it. it is interesting, the council noted the high tower case. without a letter that responded to the citation of high tower. in that we noted two things. first of all hightower held distinguished the claim that the plaintiffs made their because the court found the plaintiff had the ability to obtain a license to carry a handgun openly, the so-called class b license in massachusetts. but in response to that, we also noted a couple of other quick decisions, which perhaps merits some discussion. -- with the michigan supreme court held the exercise of the rights guaranteed by the

constitution cannot be made subject to the will of the share. and they were talking about the right to have a handgun. more recently from the indiana court of appeals, this case, we had a police chief who decided that he had the ability to evaluate people's claims of self-defense as a reason for granting or denying a permit to carry a concealed handgun. and the court that struck down restraint the police chief from engaging that behavior, holding back such an approach contravenes the essential nature of the constitutional guarantee which is essentially, of course, what this panel been here earlier in the case. also, of course, a much more recent case, the supreme court of rhode island said that the constitutional right to bear arms would be illusory, their words, if the ability to carry a gun were committed to the

unfettered discretion of the officer. finally, your honors, counsel states that we do not provide any evidence challenging the wisdom of this carry policy. that is not our burden. even under intermediate scrutiny, it does the government's burden to prove that its law actually advances some kind of progress that fits properly. >> so at that point, all i do is evaluate what the defendants have suggested as evidence, and if it meets the appropriate level of defining the government interest and fitting the regulation to that government interest, then you lose? >> we wouldn't lose because they didn't have any evidence. >> i have the affidavit you suggested. >> but the affidavit didn't show that this policy was necessary to address some feature of carrying handguns.

what the affidavit basically stated was that the three of the case was carrying handguns is dangerous and we want to reduce or eliminate that danger. if we were even to concede that they are correct, for the sake of argument, we will tell them it is a dangerous to carry handguns, we would still prevail because right around that judgment has been made in a constitutional -- right or wrong that judgment has been made in the constitution with the second amendment and that has to be respected. >> thank you for your arguments and your briefing it is helpful to the courts and we will recess. >> all rise. this court session has been adjourned. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> coming up in about 40 minutes, will take you to the pentagon for a briefing. on a number of issues, likely to

talk about the suicide bombing in afghanistan late yesterday. that is coming up here live at 1:30 eastern. and at 2:30, president obama is just what the nashville, tennessee speaking at the elementary school, talking about health care in the wake of the supreme court decision last week. live coverage of that at 2:30 eastern. and our conversations with freshmen members of congress continue during the july 4 recess with three recent interviews, including elise stefanik of new york, john radcliffe of texas, and don buyer of virginia. here are some of what representative stefanik had to say. >> i pinch myself. it is in the historic event to be sitting on the house for when the prime minister netanyahu deliver the joint session. i looked around and let's again there was a moment of, i cannot believe i'm here.

in february, i participated on a congressional delegation to afghanistan, iraq, kuwait, jordan, and i was able to visit with soldiers, but one of the visits we had with was -- was with the newly elected president of afghanistan. i pinched myself at that moment, as well. so, yes, it is a very awe-inspiring experience. but you understand that the reason why you are putting office is to represent the people, your friends, and neighbors back home. when i stop pinching myself, i think it is time to go. >> one of our conversations with freshmen members. more coming up tonight at 8:00 eastern here on c-span. coming up at 1:30, we will take you live to the pentagon to hear -- until then, a report on the

growing number of prisoners incarcerated in federal and state corrections systems. conversation from today's "washington journal." host: adam gelb is director, he joins us today to talk about imprisonment rates in this country and efforts to reform the sentencing and penitentiary system. how many people are in state and federal systems today? and at what cost? guest: we have about 2.3 million american adults behind bars. think about that. 2.3 million behind bars out of 230 million adults. that is one out of every 100 adults in this country. 1% of the adult population is locked up. the good news is that while that number increased dramatically from historical levels -- this is five times higher than it was , say, from 1920's through the 1970's.

the good news is that in the last several years, there has been an incredible bipartisan movement to try and shift to that and go the other direction. we reached one and 100 back in 2007, 2008. and now, more than half the states have taken bipartisan votes to change sentencing and corrections policy. so we have fallen in the last few years back down to one and 110. host: but where we are in that curve includes a tripling of the number of prisons since 1980. what is it costing us at that point? guest: we now pay about $80 billion for the federal prison system. that is quadrupling, even adjusting for inflation for what we're paying back in the 1970's. i think what we are seeing is that people are recognizing that essential driving point behind that increase was that if prisons went up, crime would come down. that was it, right?

and that probably was true for a good deal of the 1970's and the 1980's. that we were not punishing adequately, not sending enough of a deterrent message. but somewhere along there, this net got very big and we started sweeping in many, many more lower-level offenders. there is this incredible consensus now that says, this is too much. we are now at a point of diminishing returns. we -- where putting more and more people in prisons is not going to bring less crime. host: and essential question that you were gone, if this is so expensive, how do control corrections costs, but at the same time ensure that offenders are held accountable and that public safety is still upheld? guest: so the key thing that has happened here is that we know so much better today than we did

back in the 1970's when we started down this prison building path, would actually works. back in the 1970's and 1980's, we frankly didn't know. now we do. we have technology that we didn't have before. we have programs to change their attitudes and behaviors. and when you combine these things, you can really cut recidivism. and policymakers across the country are starting to realize this. to deliver for lower-level offenders, there are more effective, less expensive ways to handle them than to throw them in prison cells. host: adam geld is with the pew charitable trust -- gelb is with the pew charitable trust. if you want to join this conversation that we are talking about, prison reform, sentencing and corrections reform, our phone lines are open. (202) 748-8000 for democrats. (202) 748-8001 for republicans. (202) 745-8002 for independents.

(202) 748-0003 for for those who have had -- (202) 748-0003 for those who have had experience in the prison system. those numbers are up on the screen if you want to start dialing in now. in your report, you talk about how some states have been able to start glowing the numbers of those in prisons. what are states doing right that the federal government can learn from? guest: they are rolling up their sleeves and getting into the data and using research and data to drive policy, rather than ideology and emotions. that is where we have been for the past 20, 30 years, where both parties were engaged in a one-upsmanship battle to be tougher on crime. but now, it has been a real pleasure for us to work along with partners at the justice department, the institute of justice, there are a lot of folks involved in providing intensive technical assistance

to states to help them understand what exactly it is they haven't prison and whether there might be some of these more effective, less expensive strategies for the lower-level offenders. host: let's get state under chart. you talk about reform -- texas is one of those. since 2007, they have cut in prison at rates by 12% and crime rates also down in texas by 21%. expect how texas data. guest: texas is one of the most important parts of the story because, quite frankly, it is texas. and nobody thinks that texas is going to do anything that is soft on crime. but what you had in 1987 was texas was 50,000 inmates. 2007, they had 150,000 inmates. so the increased their prison population by 5000 inmates per year. and a 2007 -- remember, the economy is going strong care. there is conventional wisdom

that says we are seeing so much change because of the abundance. but think about texas in 2007 the economy was very strong, yet the legislature said hey, we do want to build another 15,000 prisons over the next three years. instead, they invested in a whole series of alternatives including more probation officers, residential treatment centers for drunk drivers, and several other strategies that try to bend that curve. and have done it. the texas printed -- prison population has flattened out. and most importantly, that crime rate in texas has exley dropped back down to levels they haven't seen since the 1960's. as you can imagine, the fact that texas has been able to cut crime has resonated very loudly. host: when you are making the

sort of decisions and trying to use more parole are getting less people behind bars, i imagine that if an offender is released and reoffend, it sort of brings public opinions against him those reforms you are trying to do. how do screen to make sure you are not going have a reoffend or when to get out of some of these programs? guest: the technical part is that one of those things that we know now that we didn't know 40 years ago is something called risk needs assessment. we don't have a crystal ball. we can't. to the future and say whether this person will will not commit a crime, but we do have a lot of tools backed by data that can give parole officials, judges, and others a much better idea of whether or not somebody is high risk, medium risk, or low risk. these tools really help parole boards and others make decisions. the second part, though, is that the public sort of for maine's

in a lock him our polling has shown repeatedly that that is a false assumption . the public is sick and tired of tough on crime rhetoric. they realize after all this prison building over decades that we're not going to build our way to public see you. when you ask any type of questions along these lines ec you see 201-1 and 3-1 support even across party lines. they want it to be for the series of violent offenders and lower-level offenders and less expensive alternatives. host: line for democrats. you are up first. caller: what i am concerned

about is the correctional institute programs. there used to be a time when the state ran ones that were not as expensive. you did not see as many criminals taking jobs that basically went to the public. how is that interest? -- addressed? they are utilizing them for the text dollars -- tax dollar.s host: we have about eight or 9% of inmate in private facilities. this number has not grown in the past years. there are legitimate suspicions

that private interests have run at the prison population. when you think it is more broadly, there are a lot of ink that intermediate -- things that contributed. you have unions on the other side that have been actively and openly campaigning for increases in the prison population. the central dynamic here is one about politics and being soft on crime. the good news is that in the past couple of years as more states had taken the texas story and followed that lead and said we can do something stupid lower-level offenders and alternatives --i will give you an example. governor nathan deal in georgia was a champion of significant

reform in 2012. he was up for reelection in 2014. he put out a campaign flyer that was not the usual attack ad against his opponent but a flyer touting his leadership on criminal justice read warm and talking about how he made the system more fair. to have a southern republican governor running out that kind of campaign flyer instead of an attack ad is an indication of how this issue has toured. host: i want to bring in hopes on the special line on those who have had experience in the region -- in the prison system. are you with a deco caller: -- with us deco caller: -- with us? caller: yes i am.

i started the take a brother program. i matched the high school boys with youngsters. we had a 142 not repeat rate out of 150. that and early detection, along with jobs -- you have to have jobs. if you tell a person they are getting out of prison, they can't go down a one-way street back to their old friends bet din prison themselves -- that did prison themselves, you have to educate them. then you have to find the employer on the outside link them up early so they have an incentive to go straight. host: mr. delp -- mr. gelb. guest: for too long, we have thought that you simply should provide services to offenders. offer them this, offer them that

and it will work. certainly, education housing services, substance abuse services are critical, but it is also critical to take folks -- old folks at -- hold folks accountable. when you put in positive incentives for compliance, hey if you do what you are supposed to do for a month, you go to treatment and you stay clean then you can earn a month off of your supervision. that is a very effective way to motivate people to actually take advantage of the services that the caller mentioned. and we also have had a system that has really been focused on catching people when they mess up and say, ok, you didn't go to treatment, so if you do it again, we are going to throw you back in the prison. what we are starting to see his sort of taking advantage of a lot of research that shows that

positive reinforcement is much more effective than negative reinforcement. host: is there any estimates of the costs of providing new incentives? is that going to be a new prison expense that can be offset by lowering the numbers of people in prisons? guest: that is exactly the way it works. both in prisons, expanding what is called earned time credits, and the federal legislation that has just been introduced called the safe justice act. it exley takes a lot of these database the lessons and puts them to work in the federal system. host: a few members of congress are joining on this conversation -- legislation. guest: and they have studied on the task force for a couple of years and look at what states are doing in this area. and included some significant provisions in the safe justice act to regulation allies it, include that inmates, if you participate in programs, you can

earn time off your sentences. so that is a time -- incentive for them. and by shortening that length of stay, you save money that you have two then invest in some of these programs, which, by the way, cost a lot less. in the second piece is to provide that same kind of incentive when they are on the street to say if you continue to do what you are supposed to do, then you can earn time off your supervision, as well. host: sandy has a question on twitter. please give us a list of low-level offensive -- offensives which now includes prison time you like to see suspended. guest: the one commonality that you can really talk about is right where we have just been in this conversation, which is how do you respond to violations of parole. for people who are breaking the rules of their supervision by

not reporting or showing up for a treatment session, and in some states, up to two thirds of people going into prison i asked us going there for committing a new crime, they are going back for having messed up on creation -- probation for parole. that is the thing that most dates have been willing to say we had to find a better way to deal with those, folks. beyond that, i think in example from south carolina is really helpful here. you have one of the main offenses for which people are going to offenses in south carolina was driving with a suspended license. to south carolina's credit here, you can go to prison for 90 days or more, not the usual you're a more like most dates. but nonetheless, i think that is offense that most people think you don't go to prison for. so on a state-by-state basis what has been happening with the justice reinvestment initiative -- saying, let's look at each

state and help them sort of understand who these people are and then come up with strategies to make sure that prisons are concentrated on serious, chronic, and violent offenders. host: florida, donald is waiting. donald you are up with adam gelb. caller: hello, this is donald. i am a libertarian voter. i have a couple questions about the prison reform on the low offenders. the nonviolent offenders. the nonviolent offenders shouldn't be in prison in the first place. they should keep the prisons for the worst of the worst. the ones that do need to be in there. those low-level nonviolent offenders, those are like people with marijuana offenses and other low violent offense, they don't qualify at all. they don't commit any crimes.

but in for the, if someone gets caught with weed, you get a year , and that is prison time. and the prisons are overcrowding. i think the whole country -- do you need criminal justice reform. guest: i think the caller taps into the sentiment that is growing across the country that prisons ought to be for serious, chronic, violent offenders. at the same time, i think there is a bit of a myth out there that prisons -- on both sides of this, you have a good number of folks that think you don't go to prison unless you are, in fact a violent and career criminal. and that a lot of people think the prisons are full of people who are smoking marijuana and got busted and now they are sitting in prison for years. it is really not one extreme or the other.

i think there are certainly plenty of people at the lower end of the scale who can be handled in a much more safe and effective way, but this is sort of where the concept of a prison composition index comes in. we shouldn't just be counting the number of inmates and having that be the main barometer of our prison system, but it needs to be accompanied by a sense to what percent of the inmate population thus consist of people who are aquatic and career offenders -- chronic and career offenders? host: can you speak to how having smallness of marijuana is changing in this country. guest: i think there are a low-level marijuana offender, you are going to prison. in most places, not that there aren't plenty of cases where it does happen, but most cases of those do not go to jail, let alone go to prison. in terms of the state prison population, you are looking at about 16%, 17% in for drug

offenses of any kind. that includes trafficking and bales, as well as possession. when you look at possession, it is down around 4%. the federal system is very different. the federal system, obviously has a very different role. and the federal system, you have 50% of the population's drug offenders. actually only a slice of those are considered the most serious offenders, the high-level supplies and the traffickers. what the safe justice act does, along with several other bills that are in the same general direction, say, again, the same concept -- we should be sending serious offenders to prison and making sure that we take advantage of some of the knowledge about how to better handle lower-level offenders. host: in the federal system, you can go to the future double trust fax sheets on these -- fact sheets on these topics.

they notice -- note the cost has increased to nearly $7 billion today. we are talking about corrections reform prison reform, sentencing reform, all these topics with adam gelb. don is up next. alexandria, virginia. the line for republicans. caller: good morning. i was calling to ask a question if there was a cost difference between the private prisons and the state prisons or the federal prisons in terms of cost per inmate. guest: good question. private prison companies is different on different inmate populations in different states. generally, they come in a little bit lower than what the state cost itself would be. however, a major caveat to there, they tend to seek and

want to hold only the lowest level inmates. an minimum-security is a lot cheaper to run than medium and maximum security. the private firms tend not to want to run those maximum-security facilities and deal with those much tougher to deal with inmates. so, if you are just for that kind of stand, i think a lot of people heavy lies over the is that privatization may have some other benefits, but in terms of actual cost savings, they haven't typically panned out. host: james on twitter, he writes, i'm for privatizing prisons as much as of inefficient government functions as is humanly possible, but private prisons is not one of the things that he is for. deborah is waiting, texas, a republican. good morning. caller: good morning. my comment is -- i have been in

the prison system and the -- [indiscernible] all the difference there is in budgeting because i went to prison for 18 months for a little empty, mind you, dime bag of methamphetamine. and what i experienced firsthand is -- [indiscernible] -- not that the drugs didn't do that but no substantive amount. no dealing going on, just possession of an empty bag in a vehicle that was in my name that i was driving. 18 months out of my life that voided me from any kind of health fund. if you don't have a friend or family member, you don't have anything there.

you are thought -- thrown under the bus, and that is it. the whole economy of the state of texas, if you will, on so many levels -- my children were left. and this was an empty bag. and that is just my,. the has to be something done. host: thank you for sharing your story. adam gelb. guest: there is a lot being done about this. it hasn't gotten anywhere near as far as most people these days think it should, but we have shifted from an attitude where if you broke the law, you go to prison. and when you get out, we are going to give you a bus ticket. and when you get out, basically nothing but the bus ticket and the close under back. and it turns out, that doesn't work very well for public safety. you have to hold them accountable, as we were talking

before, for doing the things you are supposed to do. so reentry over the past 10, 15 years has gotten a lot more serious. on the front end as well, and this may be appropriate to their caller -- 's the -- the caller's case. -- but rather are put in systems that include frequent jar testing, referral to treatment services, and then sit and sanctions. if they don't go to treatment and stay clean. and then the incentives were talking about to try to make sure that if you are going to treatment and you are staying clean, then you can stay out of jail. when it is done well, it works pretty well. everybody from prosecutors and judges to legislators is starting to realize that this is a much more effective and less expensive way to do with these kinds of cases. host: in jacksonville, florida,

a republican who has also had experience in the prison system. caller: good morning. i am pretty interested in everything that has been said. i was recently released from a federal prison is an -- prison myself, after serving for almost 11 years. a lot of what mr. gelb is saying is correct, but there is also that is not. it may not be specifically has fax -- his facts, but i'm extra stuck living at a hotel right now. i am paying a fortune to live there because i have to find a place to live. i'm having a terrible fine -- time trying to find a job. but some of the things i saw over these years are amazing. the mandatory minimums that the federal system mandates, it kind of forces the judges' hands in most cases. i'm hoping to see some reform for that in the future.

because so many of these people stuck in the prisons, maybe they sold a crack lock and they are doing 15 to 20 euros. -- years. the waste i saw in the federal system from the federal employees, the financial waste just blew my mind. i couldn't believe. something called in and talked about one of the private prisons. i was left in one of the present -- private prisons for a well. the attitudes of the staff, it was amazing. i could talk for hours about this. host: hang on the line for just the second and let adam jump in. guest: you touched on mandatory minimums, which is a key part of this debate. there are a number of those in congress right now that attacked the mandatory minimum issue. the safe justice act, which was just introduced last week, takes an interesting approach to this and says we and not going to do

an across-the-board cut for all mandatory's, but we are going to say that in order to trigger the mandatory minimums, you have to have a more serious level of conduct. again, putting in this notion that, boy, if you're going to do a lot of time in state or federal prison, you are going to have to be a really serious offender. if you are a lower-level offender, if you have able -- lo w role, nobody is saying for those people you shouldn't be punished, but we are saying that it just doesn't make sense fiscally for this country. to be paying this much money to lock up that many lower-level offenders. host: christopher, as you are sitting in your hotel room and watching, what kind of program would be most helpful for you right now? caller: you know, mr. gelb talked about spending some $30,000 a year to incarcerate a federal inmate. that $30,000 is -- i mean -- for myself, seeing that money going

to programs that would help bring an inmate back into society would be so much more beneficial. when you mention the private prisons, i know that the guards at the private prison were making $11 an hour. the federal guards were working -- making anywhere from $35,000 to $45,000 a year. i never saw them do anything more then count the inmates and locked doors. where that money could be used to help get people back into society. as i said, i'm so desperate. i wanted job so bad. and jacksonville is a very large city. i will do anything. i to the probation officer i wouldn't care what it is, what shift, what hours, what days yet i'm sitting in a hotel room making phone calls and hunting down a job. that money could go to those types of programs instead. guest: this sentiment and the way he just expressed it are

words that you could almost hear coming out of the mouth of -- of any elected official these days. there is such a broad consensus on these points now. you could hear this coming from senator cornyn or senator whitehouse, who have introduced legislation together. or from brenner and scott. this is that the federal level and the state level. there is a real strong bipartisan consensus that we need to move in this direction. that the way we have been doing things is not smart, not cost-effective. and we connection to have less crime at a lower cost if we did things a smart way. host: is that bipartisan consensus -- has that been replicated at other times in prison reform history? guest: i would say so in a very different way. i worked on capitol hill back in the early 1990's when the big bill -- crime bill passed in

1994. but it was a different kind of bipartisanship. first of all, the climate was much more cordial. but basically what you had was republicans were looking for more prisons and democrats were looking for more prevention programs. in both agreeing on 100,000 more cops. so everybody got something in the crime bill that they were looking for. in the case of today, the bipartisanship is different in that i think there is some real agreement on the underlying policies. and some recognition that we have overbuilt prisons and that we could actually reduce the prison population by a pretty substantial amount. not only without harming public safety, but by potentially increasing it by investing into programs that would reduce turnover. host: george expresses his frustration, we will build a prison before we build a school. it is crazy. dan is waiting in florida, the

line for independents. caller: it is kind of frustrating. i have worked within the system and i have been to rehabilitation, etc. we are all talking about symptoms, not the problems. it all starts with a very nonfunctioning public school that does not prepare people for a job. there is no sense talking about anything unless we talk about prevention. number two 85% of all incarcerated offenders come from single-parent homes. that is number one. number two, 75% of all incarcerated individuals are drug-related crimes. that is number two. unless you fix those two problems, all the programs, all the after you leave prison situations are not going to work. i volunteered for a prison

program transition -- the bottom line is, there is just too much money involved in the whole prison system. guest: the caller makes some very good important points there. and what he is getting at is the overall, what does work your. you can think about that a couple different ways. one is what works for people who have already committed crimes. we have talked about a lot of those different pieces here. i think it is important to remember though, that crime has come down tremendously over the past 20 years. it really did peak in the early 90's -- early 1990's right around the same time the crime bill was passed. and the assumption has been that, well, crime has been coming down because over that time, we built a lot of prisons. and i think there is question among most researchers that the increase in incarceration did

have some impressive impact on the crime rate. but they think it is small. maybe 25% at most of the crime drop as it should be civil to increased prisons. so that leaves 75% at least maybe as much as 90%, that has come from things that are not related to prison building. as a fascinating series of other possibilities, including increased police and private security and better policing. including things like electronic benefit transfer is so that people don't have so much cash lying around. things like telecommuting and people being at home during the day more so the harms -- homes are harder to burglarize. -- this assumption that just how may people we haven't prison or not is going to be what determines the crime rate. host: we talked about some state examples of states that have been able to lower the number of

people in the prison systems and crime rates in their states. since reforms in 2008 in rhode island, they have lowered their prison system rate by 70%, crime rates down by 13%. south carolina, reforms in 2010 the numbers in prisons have come down 9%, crime rates have come down 8%. kentucky since 2011 has lowered their rate by 3% and crime rate down by 13%. if you never see can check out from the public safety performance project. we have a few more minutes with adam gelb. no walking, wisconsin, chester good morning. the line for democrats. caller: good morning. one thing i haven't heard mentioned is the element of race. in wisconsin which incarcerates blacks at a rate higher than any state in the union, but only has

out of 5 million people probably 255,000 blacks total. something isn't quite right in that. i worked in the prisons as a counselor alcohol and drugs anger management, so on and so forth. i have also worked in the community-based residential facilities contracted to the doj. all the clients are basically black. especially those repeat offenders that are sent to the community based situations for counseling on marijuana charges. they have smoked while on parole. number one, that is ridiculous. number two, it is a rip off of the taxpayers. i have never seen any evidence

of measured outcome to see if the taxpayers are benefiting from this. host: mr. gelb, i will let you jump in. guest: we have seen a lot of bipartisanship for a lot of reasons. race is certainly one of them. there are enormous disparities. we calculated a few years ago that the average lifetime likelihood of an african-american male going to prison sometime in a lifetime was one in three. he talked about one in 100 adults being locked up in this country for african -- country, for african americans, it is one in nine. so for a lot of people, it is a big motivation to deal with this issue. to reduce those disparities. the good news is that some of the states were just mentioning here experiencing both crime and incarceration drops are actually starting to see some results in

this area. georgia and north carolina, which have both done reforms, in georgia since 2012 the prison admissions for white inmates has not changed at all, but for black inmates, it has dropped 11%. that is a state that the started to take out some of these lower-level drug offenders from prison and it is having a benefits that is disproportionate to african-americans. north carolina also across the board, the prison admissions have gone down. for blacks, down 26%, and for hispanics, down 37%. and for connecticut, the numbers there are 17% drop in the prison population overall, 21% jump for blacks and 23% drop for hispanics. so when states are engaging in reform, they are not necessarily saying hey, we want to put in

specific provisions that have some race aspect to them, but since minorities do tend to be disproportionately incarcerated for lower-level offenses, when you move some of those lower-level offenses out of the prison system, the benefits are disproportionate to them. host: let's go to eric in new york, good morning to you. caller: good morning, gentlemen. mr. gelb, you just a few minutes ago noted the basis for my call. i have been on hold for about half hour and got lucky, but he had noted how some states have up to a two thirds rate of their incarceration coming from supervision things like probation. and my question arises out of the legitimacy of those. where the system is designed to have a career element in it that is based on a batting averages and there is an incentive for these people to rack up

incarceration cases from their probation cases. i actually experienced it directly. i had been on probation years ago and i got a violation filed against me over a single drug test. they sought to incarcerated me for seven years. the lucky thing for me is that i had been prophylactically testing my own blood. and they didn't know that. when we got to the point in the dod proceedings -- doj proceedings, -- i have been litigating this for seven years but when it happened eight years ago, i didn't know. i just found out a few months ago that the probation officer and the assistant prosecutor they had requested and had it granted by the judge to clear the courtroom and close it for my hearing. that was an adult gop case. it did not involve any witnesses. nobody's privacy had been protected. it was over a single allegation

of a positive drug test result and i was looking to get it on the public record that this private for-profit laboratory was performing only the preliminary reading, which had a range of 60 percent to 90% performance rate in the preliminary. they were skipping the confirmation scheme -- stage and then submitting it to the court. and that is the basis of the suit. i would encourage you to look it up. host: thoughts on eric's experience? guest: there are a couple aspects here -- drug testing has gotten much more sophisticated, more accurate, and quick. and that is a good thing. obviously, they can be things that can go wrong and it's housing them a have been in this particular case. the overall point, though, is a sound one, which is that we should not be treating these technical violations in the way that we have overtime.

the way that the system has been set up and run violates everything we know about how to shape behavior, which is that you need to set a clear set of rules that is a short sets, not a long list of 15 things that you can or can't do that either you or i could keep up with the course of our daily lives. but three or four things that are important, go to treatment, and stay clean. if you do those things, you are going to earn your way off of supervision. if you don't, there is going to be a swift, certain, and also fair punishment. one of the few things in this area that has -- which is a wood screws up -- which is wait till someone screws up and test dirty, and that at some arbitrary point say, ok, that is enough, you are going back to prison. that is delayed and uncertain and not what psychologists or anybody would tell you of how to change someone's behavior.

you have to response then and you have to respond fairly. when we do that, we see that we can cut rearrest rates by more than 50%. there is a program often quite started by a former federal prosecutor called hawaii hope in the randomized trials of that has shown you can get those kind of results. in that program is taking off in jurisdictions around the country. host: dolores has been waiting on a line for democrats, portland, oregon. can you make your question quick? caller: yes. i am really enjoying this conversation. and i'm listening to mr. gelb and i'm having a problem with understanding his reasoning of the approach to, you know, handling people. first off, he district -- just keeps repeating all the facts

that the minorities are, you know, victims of racism. then the gentleman who called earlier and said there was too much money -- it is just like when we look out on society and you see how as a result of the prison system and the fear that whites have -- you know -- they want to feel safe so they go out and they incarcerate all people that, you know, people of color. host: we want to give adam gelb a chance to respond. guest: i think that attitude is changing. it has been there, it has been a driving force between policy for a long time, but i think state after state that we have talked

about from texas to georgia and north carolina to connecticut over to utah, which just passed a video package of the forest, so the coder, idaho, nebraska, alabama just became when the most recent states to pass a major package of reforms. and these are not, in most cases, close votes. we totaled up, actually, in terms of the major reinvestment packages and we are looking at over 5000 votes in favor of these packages and less than 500 votes against them. so these are nine to one votes often unanimous, and state legislatures around the country saying we have to change this. we have to go in a different direction. and we are hopeful that these lessons from these states have never really spun up into congress could and we are seeing more and more discussion about taking the lessons from the states, applying them to the federal system, and that is what this one though we have been talking about represents. it takes some of the state lessons and applies them to the federal system and tries to make

sure that the federal prison system is focused on serious chronic violent offenders. and they do a better job of the entry and check to make sure that we stop the cycle. host: adam gelb -- it >> we are live at the pentagon briefing room, expecting to hear from defense secretary ash carter and the chairman of the joint chiefs, general martin dempsey, shortly. the associated press reported that the defense secretary will recommend that the tenant general robert miller, a commander who served in iraq's western province during one of the violent periods of the war, the named the next common didn't -- commandant of the marine corps. we are also likely to hear more

about yesterday's attack in kabu a convoyl of american attack -- troops surviving a huge suicide bomb attack tuesday afternoon in kabul. this afternoon at 2:30, we will hear from president obama just north of nashville tennessee talking about health care in the wake of the supreme court ruling last week. the president announcing this morning the reestablishment of genetic ties between the u.s. and cuba -- diplomatic ties between the u.s. and cuba, allowing u.s. diplomats to engage directly with cuban officials. he said the u.s. will reopen its embassy in havana in july. secretary of state carrie will be there, the first american secretary of state incubus cuba since relations broke off in 1961 -- in cuba since relations broke off in 1961. we will stay here.

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[indistinct conversation] >> here at the pentagon briefing room, reporters are waiting to hear from defense secretary ashton carter, and the chairman

of the joint chiefs, general martin dempsey expected shortly. at 2:30, we will be live just north of nashville, where president obama will be talking about health care in the wake of last week's decision by the supreme court. we are waiting at the pentagon here for live coverage of the briefing from secretary carter and general martin dempsey. secretary carter: good afternoon, everyone. after another week on the road for me, it's nice to be home the week of the fourth of july. i hope the men and women of the department of defense and all of

you will be a per to enjoy some well-deserved rest, time with friends and family this weekend. but i also know some of our service members will be hard at work here and around the world securing our country and protecting our citizens, friends, and allies. as recent terrorist attacks overseas remind us, those who seek to harm this nation and our friends take no holiday, and neither do we in the department of defense. we need the best leaders to ensure we continue to meet those threats, and i'm pleased to announce today the president's nomination for commandant of the marine corps, lieutenant general bob miller. i recommended bob to replace our current, ocommandant, who has been nominated to be chairman of the joint chiefs of staff. one year ago, bob took command

of the marine corps forces command in green core forces europe, and he has done -- in marine corps forces europe, and he has done a phenomenal job leading more than 43,000 marines. bob is a warrior, a leader, and a statesman. i have known him since our work together when i was deputy secretary of defense and he was director of operations on the joint staff. we collaborated in the war fighting theater integration group, where we focused on providing urgent support to troops in the field in both iraq and afghanistan. so we traveled together, in the theater and around this country where i saw bob's outstanding relationship with our troops. he loves them. he relates to them. they light up when he's talking to them. i know he will be a magnificent commandant for the marines serving all over the world and

he will be another strong addition to the joint chiefs where he will provide his best advice to me and the president. i appreciate his taking on the assignment. he and his wife's continued service to our country. thank you, bob, and thank you joe and ray for joining us today. i appreciate you keeping the chairman company here. you get to take a seat while we go on to answer questions. once again, thank you. one other personal note. we announced our assistant secretary for public affairs are fantastic assistant secretary for public affairs, brent colburn, is leaving us. brent has been a source of cando r, counsel, and humor since i became secretary of defense. i know he has been the same for many of you. we have a great team coming on board, including mara sullivan and peter cook, who will both be

here soon. i want to take a moment to publicly thank brent for his service to our country, to the dod in particular, to me especially. and wish him well on this next adventure. brent, thank you, my friend. with that, i will turn things over to chairman dempsey. general dempsey: i too have complete trust and confidence in lieutenant general bob miller to lead the marine corps. he knows the entire joint force. so he will be a great teammate on the joint chiefs of staff. today, i released the 2015 national military strategy of the united states, which describes the way ahead in forging our joint force, and how that joint force will contribute to national security. since the last national military strategy was published four years ago global disorder has

trended upwards while some of our comparative of damages -- advantages have begun to erode. the strategy recognizes success will increasingly depend on how well our military instrument supports the other instruments of national power, and how it enables our network of allies and partners. the strategy continues to call for greater agility innovation, and integration of the joint force. it reinforces the need for the united states military to remain globally engaged to shape the security environment, and it renews our professional commitment to develop leaders who will bring the strategy to life. as we enter independence day weekend, we are blessed to cap on the men and women who safeguard their fellow citizens. i am grateful to everyone of them and our families for their service, and i want to thank each of you for what you do for our nation. with that, i will be glad to take your questions.

>> a question for both of you on the train and equip program. it's pretty clear you're getting enough volunteers at the front end of the process, but the number of people going through the training is too few. i wonder if you would acknowledge it is trending in the wrong direction and whether you would make any changes to the vetting process or other adjustment? secretary carter: there are two reasons why it is difficult to get large numbers trained at the other end although we do hope and expect that those numbers will increase. the reasons are, one, as you indicate the requirement which we have, a principal requirement as a country to conduct vetting -- only a fraction of those who step forward willing to take

this mission on go through vetting and pass that. that is a process we go through that results in a diminishing -- diminution of numbers. the second is the requirement they be willing, at least initially, to fight isil. that is the principal purpose of them being trained and equipped. those are two factors that make the number of those who get into our training centers, which do exist and, as you indicate, could accept more, and we want to accept more and i expect in time we will accept more -- that's where the current numbers are small. >> any changes or thought on that? general dempsey: we always look to see how any program can be adapted. at the end of the day we need credible, moderate partners on

the ground. we are always looking for the opportunity to develop those partnerships. we certainly wants take shortcuts on vetting however because of the risk that would oppose not only to our own armed forces, but to the objectives we are trying to achieve. based on experience in that part of the world, sometimes there are seasonal factors that contribute to willingness of young men in the middle east to stay where they are, with a particular program. it should be clear to you, it is ramadan, there's a lot of folks interested in being with their families during that period, so we may see after ramadan that some may come back. >> mr. secretary, general dempsey, something of a follow-up question. in syria you have fewer than 100 trained graduates from this training program. in iraq, you have one lilypad in place without the most aggressive growth in numbers of volunteers. mr. secretary, what evidence do

you have of the train and equop ip strategy is working, and do you have alternative plans to take back territory, rather than just hold ground? secretary carter: with respect to syria train and equip, our efforts as just described, i should point out that elsewhere in syria, besides that train and equip program, there are essential gains being made, for example by the kurds in the north and opposition groups elsewhere in the south, which we support also and support our goals of combating isil. in iraq, your reference is to -- a reminder, it is one

location where we are doing training. we have a number of training facilities and have trained 8500 as of now. and in addition, about 2,000 c.t.f.'s at those sites. those are iraqi army, iraqi security forces, including c.t.f. forces. your reference is sunni tribal fighters from that particular area. that is one location, not the only one in sunni territory devoted to recruiting sunni tribal fighters to the base we have established now and are building out. there are 500 sunni tribal

fighters recruited and in training. that's roughly the monthly throughput of the facility. then there are the other training bases which have now totaled 10,500. the last part of your question, can this approach work? i think the timportant thing -- important thing is that the only way to have a lasting defeat of isil is to have someone who can govern and secure territory once isil is defeated. that has to be a local force on the ground. that's why the strategy calls for the united states to help train and equip then help

enable a local ground force. that's as true in syria as it is in iraq and elsewhere around the world. so that is the strategy, to both provide for the victory over isil the defeat of isil, and secondly, and this is very important, for that defeat to stick and endure. >> i have a different topic. general dempsey: go ahead. >> the attack today in egypt on egyptian security forces. the attack indonesia tunisia on friday. the attack in kuwait on friday. we see isis operate with greater capability outside iraq and syria. are there plans under consideration to expand military action beyond iraq and syria to respond to other threats? general dempsey: what we have said from the beginning is that isil is trans regional not

isolated to, iraq and afghanistan. there's also groups in afghanistan that rebranded themselves under isil ideology, and that stretches over boko haram in nigeria. it is transregional. you used the lilypad metaphor. we are trying to build a network. lily pads do not float independently. they are connected to a subsurface architecture. we are trying to build a scaffolding to address this problem trendsregion -- transregionally, so that their defeat lasts. there are other lines of effort along with the military line. and it has to be sustainable. we have challenges, not just from afghanistan and nigeria but other things to work on as well. we are trying to balance all this. >> i wonder if you could comment

a little bit about the lack of diversity in key combat commands, both in the army the great level and -- army brigade level and the air force wing level, and whether that concerns you? secretary carter: it is a concern. it has got to be a continuing concern to us. both diversity in terms of race and also gender. this is something that i monitor very closely observe at the -- observe the statistics on very closely. watching the generational cohorts, and this bears upon that and i -- especially in the gender sense less consistently

in the racial sense, there is a group of younger officers and senior enlisted coming into the ranks that will be assuming leadership roles. i would like to see a lot more. but it is something i monitor very closely, and i feel very strongly about. because the force of the future has to be reflective of the country of the future. >> to questions a policy -- two questions. a policy question for you, and an operational question for the chairman. the u.s. is reestablishing diplomatic relations with cuba, announcing the opening of embassies. can you envision a time in the future where the united states might be willing to give up the us naval base at one time a bay, cuba?

i am struck -- guantanamo bay cuba? and, i am struck by the attack in afghanistan, the chaotic scene in the capital. the "new york times" describes that as revealing a wellspring of anti-american sentiment. secretary carter: with respect to the guantanamo bay naval station in cuba -- general dempsey: i do not perceive a wellspring of anti-american sentiment in afghanistan. at times and places where the taliban reemerge, for periods of time take back control, there's always the notion that somehow we could have prevented that. i think all of us in uniform all of the secretaries with whom i have worked, have always pointed out that afghanistan's future will be one of conflict for some time until they