nervous to go to bed there tonight. >> good thing no one was injured and take that away as the silver lining. thanks for joining us, everybody. >> "america live" starts right now. >> megyn: fox news alert on the battle over state versus federal regs today as the institution of marriage is on the docket at the united states supreme court for the second day in a row. welcome to "america live," everyone, i'm megyn kelly. we've got live pictures coming back from the high court where we are awaiting the very first audio recordings of today's proceedings. you can see the big crowds of both sides of the issue as the justices consider a challenge to the federal defense of marriage act or doma as some call it. and since the 1996 law that imposed a federal vision of marriage, defining marriage as a relationship strictly between a man and the woman at the federal level. the states can define it how they want, but at the federal level for today, it is defined as between a man and a woman.

will it be defined that way for much longer? shannon bream was live at the arguments and now live outside of the u.s. supreme court with an update. hey, shannon. >> hey, megyn, as you mentioned plenty of passion on both sides of the issue. plenty of people either in support of doma or hoping that the justices will strike it down. that defines for the purpose of federal law, more than 1100 of them, marriage as between one man and one woman. we know a number of states have gone differently on that and some recognize same-sex marriage. and because of that. whether the feds should be speaking on that, allowing the states to make their own on this issue. and federal law would instruct we recognize -- some judges leaning that strike down doma even if they don't agree with

it on the ideology, the states versus the feds, basically the rights there. it's interesting, at one point, several times actually, it was noted a vast majority of lawmakers voted for doma in 1996 and signed into law by president bill clinton at the time. the day that the chief justice asked he repeatedly, are you saying that the lawmakers made it decision made by amimus, said that it would look like they were making a moral decision, a moral ruling that they disapproved of homosexuality, and said very much like the lawmakers were trying to send a message that homosexuality was immoral, a judgment accumulate. and the rebuttal time said it was interesting you would phrase it that way. three times lawmakers went to the department of justice when

they were considering doma and drafted and voted on on the hill to say is it unconstitutional? and all three times the justice department came back and said, no, it's not unconstituti unconstitutional, you can vote for it and president obama and eric holder who heads up the justice department now think it's gone constitutional and they're not going to defend it. if you're predicting it doesn't look good for those who want to see doma survive in this case. >> megyn: they're attributing animus for those who passed the law and president clinton at the time, passed it at the time and now for it. shannon, thanks so much. as shannon mentioned, justice kennedy that the marriage act infringes on the traditional role of the states in defining marriage. because justice kennedy is typically a swing vote, that has people thinking, keep in

mind, we're all so very wrong when we tried to predict what they were going to do on obamacare. we thought they wouldn't uphold it on the commerce law and they didn't, went for the tax argument. and it has many thinking kennedy will strike down in law. and read it at the site foxnews.com, but before you rush to judgment. join you go at 2:30 today for a fair and balanced debate because i will tell you if doma is struck down, if thank you like it down as unconstitutional. it does not mean that now gay marriage is necessarily legal. in this case, that's not really what's on the docket today. the implications are much different than that so we will talk about it and explain it in more detail in our next hour. >> well, developing now, a new twist in the financial crisis in europe. reports that the financially troubled country of cyprus will ban any checks from being crashed when that country's banks finally open tomorrow. they've been closed all this time because people have been

lining up and ticked off. a local newspaper reports that there will be a limit to the amount of cash that can be withdrawn from atm's and the measures will reportedly be in place for seven days. the banks of cyprus have been closed more than a week while lawmakers consider a deal, originally they were just going to take between 6 and 10% of people's deposits and now decided to take 40% of the deposits of those who have over about $130,000, and the rich get squeezed and how, but not so much those who have less than $130,000. we're also hearing a new report that the u.s. military plans to send marines to the middle east. the pentagon reportedly wants special-ops on navy ships, service national response teams on hand to react in crisis situations? why? it follows harsh criticism to the u.s.'s response to the terror attack on our consulate in benghazi last september. four americans were killed in

that attack, including our ambassador. new evidence today that americans are increasingly fed up with the federal government, and a series of polls show a big shift in the number of people who believe that this country is headed in the right direction. over the last 30 days, we've seen a big dive in the number of americans who believe america is on the right track. and from 40% last month to just 32% today. and now, 61% believe the united states is headed in the wrong direction, compare that with 54% in february. in the real clear politics average of all polls, the percentage who believes the country is on the wrong track, the number up top, has been trending up since december. chris stirewalt is our fox news digital politics editor, host of power play on foxnews.com live. and chris, it's a dramatic lift if you look at the numbers and how they play out.

almost, if you look at right track, wrong track now, 61% wrong track, 32% right track. and just a month ago, it was only a 14% difference and now only a 30 percentage point difference and what explains it? >> well, it's even worse than that, if you-- if you broaden out your time line. the nation, the electorate was the most optimistic as it had been in 41 months at the beginning of december. the election was over, it was a terrible election. people were happy it was done. the president was reelected, okay, onward and upward. so the people were more optimistic than at any time since 2009 and then, kablewy, all of a sudden we see the numbers, sliding, sliding, sliding, it's a very dramatic moment. now, there's a lot of things that could be part of this, certainly. but one thing that you have to look at is that in the month of january we saw the steepest decline in personal income

since 2006. that was when a big part of that was when the cross the board tax increase that was part of the president's tax deal at the end of 2012 kicked in in january and for a middle income two income family, you're looking at $40 a week out of your paycheck. add in $10 more for a tank of gasoline, and that's $50. $200 a month is a lot of money for an average family, and i think you see a lot of that reflected in this poll. >> let me challenge, and i see you on that. when you look the at president obama's approval ratings which are also lower now than they have about, the latest poll shows, 45% approval, 46% disapproval, but just last month, february, 52% papproval and if they were unhappen with their paychecks in january, why didn't we see lower numbers in february. why are we only seeing them right now? >> well, there is possibly, i

won't say in my own defense, counselor, there is possibly a delayed effect here, but also this, you have to remember what february saw, which was all of that falderle over the president and sequestration talking about this, and we saw the blossom of the strategy, scorched effort against the republicans and beat them in mid terms and break the back of the party and break their fever, as he said, and set himself up for an all democratic congress after the mid term election. as it turns out, especially if people are feeling the pinch in their wallets, watching these games, funny games play out in washington, did not make people think that their leaders are serving their interests very well, particularly when the things that the president is talking about are divisive and controversial, especially gun control, especially gay marriage, immigration, these things are not inconsiderable. >> megyn: you say there is a delayed effect.

january, i'm angry, paycheck, angry, angry. >> then you target somebody with that anger, yes, yes, yes. >> megyn: the pollster calls again and let me tell you something, i'm angry. i want to ask you, because your power play piece today says this has folks concerned that -- about a repeat of president obama's first term, boom and bust. because he came in, you know, both guns blazing when he was first elected and everybody loved him and the ratings were up super high and then completely walloped in the mid term elections and things had really turned around in two years and you believe that this may be a harbinger of that same type of dynamic? >> we've seen it in 2009, 2010, 2011 we didn't see it in 2012, election years tend to force people to their political bases. they go back to where they're from. in each of the first three years of the president's term in office, you saw a spike in approval, an optimism as people, as the economy was better, people felt optimistic

he at the beginning of the year and then as recovery did not materiallize, or got shaky or washington became dysfunctional, it dip, dip, dipped, and as you watched it in 2010, the timing was hideous for democrats and they ended up getting in historic paddling that they got from republicans. now, i don't think it's a wave shaping up like that, but if i was one of the-- if i was trying to defend one of the ten democratic senate seats i would not want to see this pattern play out again. >> megyn: thank you. >> you bet. >> megyn: a new investigation revealed eye opening numbers on federal disappointment payments and a huge surge we are seeing in what critics call a program that is now loaded with fraud. that investigation is next. plus, there's a new fight in the the media over what's appropriate when covering the first family. we'll look at the angry response one writer earned when he recently criticized the obama's vacation habits and how one of the media figures now defending the white house was singing a

different tune when it came to the bush family. and we're following a growing controversy in florida over what critics call an exercise in religious intolerance. we have got the lawyer of that college student who was slapped down by his school after he refused to sotomp on jesus. >> he said write the word "jesus" and put it on the floor. he took it output it on the floor and had us standing up and once we were standing up, he said stomp on it and that's he when i picked up the paper from the floor and put it right back on the table. ♪ you know my heart burns for you... ♪ i'm up next, but now i'm sging the heartburn blues.

hold on, prilosec isn't for fast relief. cue up alka-seltzer. it stops heartburn fast. ♪ oh what a relief it is!

>> an eye opening new investigation into the federal disability program and a system that's some believe is rife with the opportunity for fraud. among some of the disturbing findings uncovered in a just released npr report the

government spend more each year on disability than it does on food stamps and welfare combined. how about that? and as of 2011 nearly 34% of newly diagnosed disabled workers cited back pain and other musculoskeletal problems as their reason for being unable to work. in 1961 the top reason was heart disease and stroke. and probably most concerning, less than 1% of people who went on disability at the beginning of 2011 have gone back to work and they say that's what happens, once you get on disability you don't go off of it and you don't generally return and that is expensive to the federal taxpayer. joining me now mark hannah, a former aid to the john kerry and barack obama campaigns and rich lawrie, editor of the national review and contributor. and this is a piece by npr that goes through a great deal. the spike we've seen in some of these disabilities payments

and applications, and they talk about how, rich, the states have this perverse incentive to try to kick people off of the welfare rolls and on to the disability rolls because it means the states don't have to pay for it and then the feds do. and as a result, i suppose, it's the federal taxpayer who gets, you know, wind upholding that bag? >> yeah, that's exactly right and just the growth, megyn, has been astonishing. since 1970, the rolls have grown four or five times. in the 1960's, less than 500,000 people on the program in the entire country and now we're above 8 million and spending since 1970's, grown 9 times, which is the npr report points out, doesn't make sense. given that we're all healthier. we have, you know, much better health care system and jobs are much safer than they've ever been before. so clearly something else is going on here and part of the problem is eligibility standards were loosened in the

1980's and it had become much vaguer, more subjective and more than half the people on disability are the kind of back pains you've discussed or mental illness, things that inherently involve the subjective criteria, and it seems for a lot of of people this program is a substitute for work. >> that's the thing, mark, nobody is going to question you, you've got the heart disease, you can't work and people understand that, but people think fraud when they see, you can never work again because of your depression? and now the federal taxpayer has to subsidize your life forever because you're depressed? >> or back pain. >> and i think the definition of disease or disability is shifting here. i will say that this was a really important investigative piece by npr and shocked me that mitt romney would want to take away public funding. >> touche'. >> the man, listen-- >> never give it up, megyn. >> and let it go. >> okay, okay, we've moved on from mitt romney. no, to rich's point and i

think the growth that he points out of disability insurance is important to bring up here because there are -- there are traits in the economy, there are trends that are important to look at here. we're looking at baby boomers coming to an age when he they're a lot more likely, they're aging into a certain age range more likely to claim disability or be disabled. >> megyn: getting older and not feeling that well. >> exactly. women now who, one of the eligibility requirements you've worked for five of the past ten years. more and more women are qualifying. more and more women are likely to be claiming disability than ever before. and as -- this is an unfortunate fact of modern life, but child poverty has increased in this country and poor people are more likely to legitimately be afflicted with disability. sure, there are always going to be these spectacular cases that the fraud and the public imagination, but we can't track or lose sight of the

demographics in the-- >> certain of the claims are legit and americans have no problem supporting them in need. it's not just the outlying cases, we covered a case of a cop getting disability payments and charged with faking the injury, when the feds caught him rocking out with his brooklyn punk band. it's not just one case, you hear the stories all the time in particular about some service employees, who are suddenly permanently disabled and we have to pay for them the rest of their lives. >> the big are they are, the looser the criteria are, to chisel the government, it costs everyone's money. it's not good for those people getting free money from the government. they may feel as though it's good. people need to work, spiritually, psychologically,

morally they need to work and some is aging, a lot of it is also though just lower killed workers who a -- skilled workers and having a harder time in this economy and using this as a substitute for a job. >> megyn: go ahead. >> if there's a suspicion of widespread disability, point to the study by the government accountability office, a report that shows inappropriate payments or improper payments to recipients is less than 4% of all improper payments that the federal government makes in the course of a year. i don't think that there's a widespread-- >> just because fraud doesn't mean it's not being committed. the gao may not be able it to snuff that out. the numbers are high. i've got to go. >> we have to turn attention to the doctor as well as, we need to be he equal

opportunity about criticism. >> megyn: a good debate. thank you, both. >> thank you. >> megyn: the son of a famous tv judge, my favorite tv judge could find himself in the courtroom. what judge judy's son is being accused of and the possible fallout. and the national quiz, we've got an update for you. >> it's clearly not the '80s and

>> coming in clear now, captain. shall i open a channel? >> yes. you can imagine, report. >> sir, it's worse than we thought. there's money laundering bribery, campaign haircuts, and running rampant in the streets. and sir, they're even exchanging the lowest currency for paper bills. >> you don't mean-- >> that's right, sir, opini pen on the dollar. >> megyn: good gracious, an

update on the irs spoof we told you about. you paid for this. it was a clip from a six-minute movie made by your irs employees that cost you $60,000. the irs, you might want to be more responsible with our money and they will be, they say. but you know what? it wasn't just the taxpayers who were appalled. william shatner comes out and says, he is quote, appalled by this video and not because of the acting. he is blasting the training video calling it a waste of taxpayers money, again, the irs is sorry, very sorry. shatner of course played captain james t kirk in the original "star trek" tv and movie series and also awesome in "boston legal" for what it's worth. well, from new york a bizarre case fit for reality tv involving the son of tough talking tv star judge judy.

he's an assistant in upstate new york and he's accused of interfering in a rape case between his trainer and. >> the case involves a romanian man, accused of raping a 12-year-old girl, the girl is now 15 years old and recently made the allegation. and the putnam county d.a., adam levy, judge judy's son, he recused himself from the case because he says the family has known the suspect for years. now the putnam county sheriff says not only does the d.a. know the suspect. the suspect lived with him as a live-in personal fitness trainer. the d.a. fired right back saying, no, no, no, the sheriff has the wrong address. the sheriff then fired back saying, oh, no, no, we have the right address and we have the proof to back it up. then the sheriff said, the suspect was in the country illegally and without naming

names, asked if the suspect, quoting here, may have been harbored, shielded, aided or abetted in the time leading up to, during or following his vicious rape of the little girl. but then, the sheriff did name names when he dropped this bombshell saying in the same statement, mr. levy's comments and actions would seem to suggest that if he could have his own way, the man would never have been brought to justice for his crime and mr. levy's relationship would him would have never been brought into the light of public scrutiny, then the d.a. levy issued this statement, quoting here, despite sheriff smith's unfounded allegations and misstatements, the facts will show my office acted properly in every aspect of the investigation. and as you might assume, megyn, of course, judge judy had to weigh in on this issuing a statement, again, saying, quoting here, the sole focus of this story should be the investigation as to whether the young girl was the

victim of a very serious crime. judge judy's involved, the d.a. and the sheriff are at loggerheads. clearly there is no love lost between these two up in putnam county. the case will go to trial. >> megyn: wow, wow, and judge judy, i'm glad she's not directly involved, just sort of as an outsider, because i love her. thank you, trace. >> okay. >> megyn: and after many, many times, i can't get her, i don't know why. but i love her anyway. coming up, we're watching a new media fight what is appropriate when covering the first family. we'll take a look at some of the angry responses one writer rnd wh earned when he criticized the obama's vacationing habits and when he came out and told us where the first daughters were vacationing which is a no-no.

another didn't feel that about covering first daughters when they were republicans. and a controversy in what critics call an exercise in religious intolerance. a college student is shot down by his school when he refused to stomp on jesus. nor says sorry isn't good enough. a tragic and powerful story after a skydive attempt goes horribly wrong. what we know about how an instructor tried to save the life of his student. >> he was attempting to stabilize the student and reach for the students ripcord. they were falling at 120 miles per hour, all you can hear is wind. and even fewer that make moms happy too. with wholesome noodles and bite sized chicken, nothing brings you together like chicken noodle soup from campbell's. it's amazing what soup can do. your doctor will say get smart about your weight. that's why there's glucerna hunger smart shakes.

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the question is how do you make sure you have the money you need to enjoy all of these years. ♪ >> well, a new fight in the immediate i don't over what is is and is not appropriate coverage of the first family. it started when joan walsh, the left leaning editor at large attacked a conservative blogger for revealing where sasha and malia were vacationing. and the concerns raised questions about the expense of the trip in light of the budget changes in washington and the sequester dust-up. miss walsh suggested this post was racist and demanded that people treat the president's respect. but the same writer joan walsh wrote a scathing article about the bush family's quote

alcohol troubles back in 2001. reporting on teenage twins, barbara and jenna bush, even appearing to suggest that the girls could be on the road to becoming alcoholics themselves. monica crowley is a radio talk show host and kirsten powers, daily beast. both are it contributors. >> megyn: and i have the piece in front of me entitled "the first family's alcohol troubles" the time the bush daughters 19 years old in college and had been reports in the national enquirer, she cites heavily in the piece, she goes on and talking about bush's bad choices as a father. saying, look, there's no evidence either twin has a drinking problem, but the string of news items involving their partying and scrapes with the gnaw in the last few months cannot be ignored. recklessness in the first few months of their father's

presidency suggests their parents screwed up by denying and down playing president bush's own drinking problem and described them as a waspy texas first family and saying the twins are acting out as a result and he may some day find he won the white house at the cost of an honest relationships with his daughters. i ask you, kirsten, who is joan walsh to lecture anyone on respect for the first family? >> yeah, i mean, that's pretty outrageous, she did write a follow-up posting she wouldn't write that article again though she didn't clarify why or what changed in the last 12 years or so because it's not like joan was, you know, 22 when she wrote that. she was a adult, she was a journalist. you know, i think that it was, you know, pretty, pretty bad and very cruel to the bush daughters and they were in college, now? i mean, can you remember when chelsea clinton went to college? i remember it. the reporters were very hands-off about that and you

never heard anything about chelsea for the most part and that was sort of understood. and i think in the same way with the obama daughters, i don't think you should report where they're vacationing. i think they are off-limits. >> agreed. >> i think we all agree on that point. >> for joan walsh to call it racist, i think it's just bad taste and bad journalism, i wouldn't call it racist. >> megyn: that's the other point she was making, monica, apart from the hypocrisy what she had done and when she got caught. she didn't disclose in her piece bashing breitbart that she herself had done this to first daughters ten years ago, but she was caught. >> right. >> megyn: and media breitbart posted her 2001 hit on the bush daughters and oh, well, my hypocrisy, i wouldn't use that same tone and i guess i regret that article. that was legitimate news story and where the obama daughters are vacationing was not.

we don't write about where the first daughters are vacationing, they're the first family, but to charge it's racist to discuss the first family's vacations, your thoughts on that. >> it's really despicable, megyn, that she brings out this line about racism. she brought it in up in the first piece and kirsten cited and she raised it again. if somehow, you criticize this president on anything, whether it's on the deficit or out of control government spending or obamacare, whether it's on the fact that this is their third vacation and we're only in the third month of the year, at a time of sequester and belt tightening for every american and especially for the government, or should be, if you raised legitimate criticisms about the way this man is governing the country, that somehow you're a racist. it is, first of all, it's despicable and it's outrageous and should not be tolerated and secondly, it has no place in this conversation. i mean, if we--

remember, martin luther king, jr. said let the time come when we don't judge the color of the skin, but by the content of character and now we have the first black president we should extent it let's judge by the content of the-- >> what she's saying is that the reason -- this is what she writes in her piece. right wing stories on sasha and malia seems they're entitled princesses when they're doing or families did throughout history and she talks how she believes that this is -- that people think that they are, quote, uppity, and that there's a racist theme to talking about their expensive vacations in aspen and where michelle obama went and elsewhere. >> well, you know, this vacation thing goes on in every administration. i'm sure you all remember, he we always were hearing about george bush's mountain biking and george bush going to the ranch and how many times he'd gone to the ranch and maureen

dowd loved to write about it. it's so pervasive. when john kerry was running for president, wind surfing or skiing, whatever, each side does it. there's nothing racist about it, they're just doing what they always do. it doesn't-- and for joan to pretend like she doesn't know that. that she did it herself. you know? this is just -- i don't do it personally, i think they should be allowed to take vacations, but, i'm sorry, secret service has to go along and paid for. it doesn't mean they should be overdoing it, but i don't begrudge them going on vacation and certainly the daughters are off limits, but the breitbart story was straight forward story and i wouldn't have done it and-- >> could have said it was a ritzy place, didn't have to get into it. there's been a theme of, i mean, a string of vacations that the obamas have taken that are pricey to fancy

places, partly because he's from hawaii and michelle obama goes to skiing and we're not going to get into where the first daughters are now. he's trying to make a point and he didn't have 0 get into specifics. i want to ask you again, monica, again, certain people on the left like to go back to the racism place repeatedly. i mean, everything is racist. was joan walsh called, you know, a racist when she went after the bush daughters? no, because she's white and they are white. but if if they weren't some of them would have been called racist. because you're the first black first family it shouldn't be a shield or a sword used against you. >> that's exactly the point, megyn and unfortunately what's tragic about this, so many folks on the left have made the racism card the go-to card. to attack anybody who is opposing president obama on

any number of issues. and that is what's really, it's despicable and tragic because, yes, there is real racism that exists and every time the race card is pulled and played in a place where it doesn't belong. every time racism is injected where it doesn't exist, and where it hasn't existed and inappropriate and has no place, then it actually dilutes real racism and makes it harder for people to look at real racism. for the left to do this on a routine basis still after all of this time, it actually he defeats their own purpose, megyn and it makes people tune out what they're saying. >> and she didn't have to go there. if she just said you shouldn't have done that, it's not what media people do, and we would have been on solid footing, but she went to a dark place and she got caught. she got caught being hypocritical. panel, thank you both so much. >> thank you. >> well, it started with fists and ended with a gun. an apparent case of road rage caught on video and now questions about who started

it. this is incredible, this case. the gavel drops in kelly's court. and reports that a growing number of egyptians are upset with the obama administration over its continued support of the muslim brotherhood. the president, mohammed morsi. we'll look at why that matters. and new developments concerning a classroom lesson that seems to suggest that the u.s. is partly to blame for the 9/11 terror attacks. remember, we told you about this? we have one of the videos now. remember, they apologized for the quiz, but they stood behind the video originally? well, we'll show it to you, what they stood behind. >> went into the school and there was a teacher and principal and they showed me the video, and after watching the video, it's a little -- it's a little worse than that. the statement itself, it talks about how we're big and powerful and we don't always use our power the right way. ♪

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>> well, the florida governor is now demanding an investigation into what critics are calling an exercise into religious intolerance. governor rick scott telling the head of his state university system he wants answers personally how this florida atlantic university professor was allowed to instruct students to write the name of jesus on a paper and put it on the floor and stomp on it and one was punished for it. >> everybody was to write "jesus" in bold letters, i wrote "jesus" just like this and afterwards he said everybody put it on the floor. we took it out, put it on the floor and he had us all stand up and once we were standing up, he said, stomp on it. and that's when i picked up the paper from the floor and put it right back on the table. >> megyn: hiram, the attorney for the student you saw there,

and the liberty litigation law firm. hiram, thank you for being here. and as of last week, the student was saying that ryan wou would-- engaged in alleged violation of the student code and was threatening him not to return to class. they have now done a bit of a reversal have they not? >> they did. we were able to meet, ryan and i, with officials monday afternoon and get things worked out and apologized profusely and one of the officials actually said, look, we understand not only was ryan offended and lots of people in our community were offended and a lot of people across the country were offended and i think they get this was an offensive lesson and obviously they were in the wrong for punishing ryan in the first place. >> megyn: it's incredible when you look at march 8th letter that they sent to him. on the day that the school sent to ryan, who just said look, i'm not going to do it.

i'm not going to stomp on jesus. maybe a violation of our code of conduct. boy, oh, boy, what a difference it makes he when you shine a spotlight on such behavior, no ? >> yeah, i think the also son-- there were other students in the class who were offended by the assignment, no doubt about it. and this assignment, it's in a textbook and been used in some other courses probably in the country, but it just takes one person, one person to stand up and say, you know, this isn't right. i'm not going to -- i'm going to challenge this and takes like-minded people standing behind that person and saying we're not going to tolerate this as a nation and bring stop to some of this ridiculousless. >> megyn: now, the governor of florida apparently not entirely with the apology to ryan. wants a report and a statement

from the university and that the lessons will never occur again. is there any talk of this teacher being disciplined or talk of what steps they will take to make sure this doesn't repeat itself? >> well, now, no specifics, but the university in the press and to us have emphasized he's an untenured professor. they've pretty much distanced themselves from the professor. the top officials at florida atlantic university, when they got their act together, they did the right thing, they apologized, made it right for ryan and taken the right steps and they deserve kudos for that. but, obviously, i think the governor wants to make sure that this kind of stuff doesn't happen again. probably not only at florida atlantic, but other universities in florida. >> megyn: hiram, all the best to you. >> thanks for having me. >> megyn: coming up the white house press secretary made news about an hour ago, and the president and the push for gun control.

we'll have that. imagine trying to save someone's life as both of you are falling to the earth at 120 miles an hour. that's next. >> it was very difficult. it was hard to watch knowing what-- because i got. i was called out that night and i was out on the scene where the bodies-- look what mommy is having. mommy's having a french fry. yes she is, yes she is. [ bop ] [ male announcer ] could've had a v8. 100% vegetable juice, with three of your daily vegetable servings in every little bottle.

>> there's an amazing story emerging, a skydive jump going horribly wrong. now there's evident that the instructor's heroic actions to try to save his student's life as they fell to earth at 120 miles per hour. and trace gallagher has the story, trace. >> trace: a reminder, both the student and instructor were visiting from iceland and jumped from 13,000 feet which means they had about 70 seconds of freefall before

they were supposed to deploy their chutes. the problem they never deployed the main chutes. now, both of their backup chutes were in fact deployed, but they did not inflate in time to save them. here is the 911 call made from the flight. >> 911 what's your imagine. >> i have two in the swamp somewhere. >> they were found and the instructor was wearing a helmet camera. and the sheriff has seen it and it's difficult. couldn't tell if the student was passed out or disoriented, but for some reason could not pull his chute. here is the sheriff. >> it shows them exit the airplane. it shows the freefall. in the video it appears that the student doesn't pull his primary parachute and the instructor attempts to assist

until the conclusion of the video. he was attempting to stabilize the student and to reach for the student's ripcord. >> clearly, the instructor's hailed as a hero, but they are all taught, all of the sky dive instructors below 2000 feet you cannot try to pull the student's ripcord, you have to kind of let them go and pull your own, because this guy clearly was not about to give up. he's a hero, megyn, he would not let go. all the way to the ground. >> megyn: wow, trace, thank you. >> trace: okay. >> megyn: coming up next we're going to update you on the situation in egypt. and how our once popular president there is seeing a very different reaction this today. and plus, kelly's court today takes on the apparent case of road rage caught on video. the fists fly, a gun comes out. and the kelly's court takes up the question, who should be charged with what in this one? (bleep)

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>> fox news alert on a new white house effort to win support for gun control in the face of falling poll numbers. brand new hour of america live. welcome everyone, i'm megyn kelly. the white house announcing a new event for the president tomorrow. he will take a stage with a group of mothers affected by gun violence in an attempt to drum up support ahead of what it's looking like a challenging vote in the senate in the coming weeks. this comes as a new cbs poll shows backing for stricter gun rules is losing steam, with support standing at just 47% and look at that, down from a high of 57%, right after the sandy hook elementary school shootings in december. 11% suggest making gun laws less strict and another 39% keep them as they are.

ed henry has an update at the white house. >> reporter: the question is whether as you lay that out whether the president has lost momentum since more than 100 days have passed now since the tragedy at newtown. it's been precisely 100 days in fact, since he visited newtown just a few days after that tragedy. gave that powerful speech and talked about in what was really a stirring speech, you know, dramatic action that was going to be coming in the days ahead. look at the latest fox news poll. you mentioned the cbs poll, but a fox poll from late last week in favor of requiring universal background checks, overwhelming support. 85%. mental health checks, 72%. when you look at high capacity clips, lower. and banning assault weapons, 51%. this is the kind of thing the president would have to be out there drumming up support to

have it. and i asked whether or not it was slipping away. >> because of his aggressive advocacy of the issue there will be a vote in the united states senate whether or not military style assault weapons will be banned from the streets of this country. i think that is -- that represents progress. does it mean, i can't guarantee that it's going to pass, but it is a question that 100 senators are going to ask themselves when they wake up in the morning and look at themselves in the mirror whether or not they're going to-- which side they're going to be on. >> you can see right there, that is now the definition of progress. quote, unquote, progress for the white house, having a vote on a ban on assault weapons, not actually getting it passed because they realize, the votes certainly do not look like they're in the house and it's going to be particularly difficult as well as the senate which democrats control. they don't have 60 votes to cut off filibuster and there is a threatened republican filibuster on some of the changes, but the bottom line looks less and less like the president will get a ban on

assault weapons, but might get universal background checks. >> megyn: that still remains popular. ed henry, thank you. one idea from the gun debate is gaining steam from the debate level, it's called mandatory gun insurance. legislation considered in a handful of states would require gun owners to insure their firearms just like car owners insure their cars. and pro gun are outraged, for americans who exercise their constitutional rights. we're getting reports that a growing number of egyptians are angry with president obama and with america. this comes as america continues to support president morsi there and the hardline muslim brotherhood. egypt is seeing unrest over the political goals after group that will get more than a billion dollars from u.s. taxpayers this year alone and more and more we are seeing that they are not happy for

us-- with us. and that has consequences for us. ralph peters is a fox news contributor and author of "hell or richmond." apparently to give you a flavor, banners read that obama supports the dictator morsi and bloomberg news did a long report on this today talking how they're not happy with our president, they're not happy with us, and the reason they're unhappy is because we're backing a guy who has cracked down on them, who bears a lot of resemblance to the old former dictator, and they don't really think they got what they thought they were going to get in the arab spring. >> no, absolutely not. and if president obama's foreign policy could be summed up, it would be six words "just stop bothering me with this stuff." the arabs, the moderates and seculars, not

just egypt, but africa, feel betrayed because president obama turned away from them and he is supporting a increasingly dictatorial government. and you're seeing the arab spring turn quickly into a muslim brotherhood winter. >> megyn: how is it president obama's fault or america's fault? they're the ones who wanted the arab spring, wanted mubarak out. no, we didn't stop it, sat along and sort of encouraged it, but that's what they wanted. they wound up with a leader who, you know, is cutting down on the press and has all sorts of questionable measures, ignoring the parliament and so on. but how is it our fault? >> well, it's our fault in their minds, for two reasons. one, people still think that america can wave a magic wand and make anything happen and secondly, obama didn't have to embrace morsi, he doesn't have

to be sending morsi money and encouraging international institutions to loan egypt money. he should be letting the muslim brotherhood fail and it is failing which is why morsi is becoming more dictatorial. and it going down and we're propping it up. it's crazy. why are we propping up the extremists, who among other things, by the way, are tolerating the violent persecution of christians as we saw in egypt. why are we propping this government up? as a minimum let's engage in benign neglect. >> megyn: they seem to be wanting to tie some the aid we gift to egypt to more democratic milestones, look, if you want us to keep helping you, you can't be mubarak part two or worse than mubarak. you've got to start doing more democratic reforms over there and you mentioned the economy in egypt. what a mess. some of the stats for our viewers, unemployment at 13%, inflation has almost doubled since november and gdp, not so

great in this country for that matter either. but the egyptians are unhappy, unrest is growing, it is looking less and less democratic. we continue to send aid. and now they are looking not just at their current president morsi, but they're looking at america wondering why we're not doing more. before i get you to respond. what a contrast, ralph, from the way then candidate obama said it would be. listen. >> i truly believe that the day i'm inaugurated not only does the country look at us differently, but the rest of the world. they understand that i've lived in a muslim country and i may be a christian, but i also understand their point of view. >> megyn: your thoughts? >> you know, well, there's a problem that even goes back to the bush administration, in that the white house under bush and obama listened to the wrong voices among american muslims. they listened to care and other thinly disguised radical

groups to keep telling them. everything will be fine. the muslim brotherhood is a peaceful organization, no such thing as violent jihad and they buy into the nonsense because it's the easiest way to go. there's no real effort even on the part of our intelligence community to differentiate between the different strands of muslim societies. there are secularists and moderates and those who aren't violent and then the violent who are slaughtering muslims and cleansing the middle east of christians and minorities, and we wind up pandering to the extremists because we hear the muslim voice ins washington saying, oh, these are good guys. they're not good guys and at some point i would like to hear the obama administration simply admit that there is such a thing as islamist terror. we still can't use that phrase, islamist terror in classified intelligence reports.

we're self-deluded and as a result of which we're betraying the faiths the hopes and the trust in america of would-be democrats throughout the middle east as the muslim brotherhood and other extremist groups crush them. >> megyn: we'll continue to watch president morsi in egypt and see what the future holds for him and his country. things there do not look good. ralph, thanks. >> thank you, megyn. >> megyn: a new question as the supreme court considers two days of arguments over same sex marriage and now we're getting reports of how this morning's argument went on the federal defense of marriage act which defines marriage as between a man and a woman. the initial reports out of the courts could turn out to be wrong so take them with a grain of salt how the high court does not appear to favor that law. we will talk about it coming up in just a bit. what does it mean if they strike that down? what does that mean for gay marriage in this country. and a new report suggests that

the uniforms that american border agents wear are actually made south of the border. we'll look who is behind that decision and the potential security risk involved. and two very prominent americans are trying to come back from personal scandal. we'll look at the challenges these two men face, the mea culpa's, they're doing. >> let rebegin my remarks by reiterateling how deeply i regret and apologize for the circumstances that led to my resignation from the cia and caused such pain for my family, friends, and support. ♪ you know my heart burns for you... ♪ i'm up next, but now i'm sging the heartburn blues.

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>> the fbi is investigating a suspicious death on board a royal caribbean cruise ship. it happened on the enchantment of the the seas and the ship was sailing to florida and the bahamas on a seven night trip from baltimore and the man

found his 62-year-old wife dead inside of the cabin. all we know right now about the woman, she was from virginia. the ship is now back in baltimore and an autopsy is being done to determine how she died. i don't know why it was labeled suspicious? does it come from the authority? it came from the authorities and we don't know why. head to foxnews.com for more information. information. >> perhaps my experience can be instructive to others who stumble or indeed fall as far as i did. one learns, after all, that life doesn't stop with such a mistake, can and must go on. and the effort to move forward offer the rocky path of one's own making is vital, inescapable and ultimately worth it. >> that was general david petraeus makes his first speech since he resigned as cia director. he apologized once again in an

effort to rehabilitate his once stellar reputation and he had been caught in an extramarital appear. he is not the only one. superstar tiger woods on a similar road. look at the new nike ad, quote "win takes care of everything" showing tiger in the background. and both men trying to redeem themselves and their sidetracked careers. and are the american people ready to forgive and forgot. monica crowley is a radio host and contributor. and david webb xm patriots. >> megyn: do you see a difference, let he me start with you on this, david. and their positions, david petraeus had an affair, resigned, lost his important post as cia director and now he apologized and now another apology and the tiger woods situation which was much more explosive and involved, shall we say, 10 to 12 women he cheated with his-- he cheated on his wife with, and now this ad from nike.

>> there were differences in the situations, but not really in the problem, and unless talking about the problems, power, hubris and a society that accepted that an apology is good enough when it's your behavior, that's the problem. i believe in redemption and i think most fair americans do, but we have got to stop accepting these apologies, whether it's michael vick, tiger woods, pistorius, lance armstrong, all of these things. what do we accept, that they can move past this and remarket themselves. and we know there's a problem, whether it's politicians or people in power or poeisitions that hubris is the issue. if we begin not accepting it, it may not stop their bad behavior, but nike, free market capitalism, if they can sell your product nike is going to go along with it. nike is being honest "winning stakes care of everything" and move past it. >> megyn: that may be a

factual statement. tiger woods is number one again and going to get the endorsement deals and make a lot of money again, but should it be said? should it be used in an ad to promote him given, you know, and i don't know if there is a sliding scale on affairs and so on. he didn't just have one affair, he had multiple affairs with porn stars and so on and his wife and the kids and you know, is there a reason not to do it? >> none of us here are condoning adultery, okay, in this conversation, but would i think that there's a distinction between david petraeus as cia director engaging in an adultous affair and countless women. david petraeus was paid by us, the tapes. and cia, his adultery not just with the public trust, but all of us at risk because he could have been-- >> compromised. >> exactly. tiger woods is a private citizen. the difference here, he created this image for himself that was family oriented and

loved his children, his wife and wholesome, all american and found out when it blew up, that was not in fact true. >> megyn: and we got the details, more details than we wanted from the porn stars talking about length, how their relationship went and what the relationship did. i know too much. >> and never be able to erase that from your mind, megyn. this nike ad, i don't fault nike at all. they're in business to sell a product and a provocative ad like this has us talking. that quote "winning takes care of everything" and said in a tour championship in a different context. it's a double entendre here. does it take care of everything? and in america we're a very f forgiving society and an athlete losing since the scandal broke to win, and i think in a lot of people's minds will rerace. >> megyn: you mentioned michael vick, i personally can't get over what he did to

those dogs and i read the indictment and what he pleaded guilty to what he did to those dogs and tortured living creatures, knowingly tortured them, but there has been forgiveness in many circles and rebounded. >> it's forgiveness or forgetfulness, we have short memories, but i agree with you, monica on the differences between petraeus and the private citizen, but going back to what is the real problem? the real problem is people choosing their behaviors. we don't know what patriot did or didn't do, could he have porn star-like behavior? who cares? we've got to go back to the hubris-- >> to go back to winning takes care of everything, it says something about his own attitude. does it take care of everything? did it heal the wounds it caused with his behavior. >> no, it doesn't. his children and the money, 250 million doesn't solve the problem. >> megyn: the scandal he brought on his family and

children living what knowing what he did and hearing the same reports i had that i don't want to about sexual exploits? >> sadly, megyn, a lot of kids that grow up out of these families, it does take care of everything because there's a lot of money, insulated in a bubble somewhat culturally and when they grow up with that, this is that cycle of dependency. he so, we as a people have to decide that your behavior is not acceptable anymore. >> but that raises an interesting point, david, how we, the public, judge these personalities and whether or not their despair to be for given and their expression of remorse, whether or not-- >> and said that forgiveness means everything. that would have been a better choice. >> you look, we make judgment whether somebody an authentic. richard nixon after watergate spends the next 20 years of his life trying to make it up to the american people and decide whether it was real. i worked for him, it was authentic. and bill clinton after the lewinsky scandal, he

apologized and the american people said, we don't buy, but remorsefulness, we'll give him a pass. we as a society make a judgment. >> megyn: people are human, that's redundant. these guys are human and a lot of them find themselves in marriages and the behavior. the celebration of the nike ad takes it it to a different place arguably. last word. >> if you're in a loveless marriage or a bad marriage as an adult make a decision to move on from that. >> megyn: a lot of them do. he did, tiger woods got out of his marriage and-- before he did, what did he do. >> megyn: i know, a lot of people that make human failings and-- >> i'm not denying that, people are human, however, we have to have a higher standard for ourselves as persons and go from there. >> megyn: no reason not to continue to strive. >> absolutely. >> megyn: thank you both so much. >> you bet. >> megyn: coming up new fallout today as the fists were flying in a case of apparent road rage. it's caught on tape and the video is raising some serious

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>> guys went into the school and met with the teacher and principal and they showed me the video. and after watching the video, it's a little worse than the statement itself, it talks how we're big and powerful and we don't always use our power the right way. >> megyn: well, that was kara sands, a texas man we introduced you to on "america live" last week and she was on fox and friends.

a controversial lesson and quiz that seemed to say that america was partly to blame for the 9/11 attacks and now she says that the school pulled the video. at first they stood behind the video and pulled the quiz. and now she says they've at last pulled the video as well. and why is america a target for terrorism. according to the curriculum, the decisions the u.s. made had negative affects on people elsewhere. that's based on the clip from a video they first did not release, but now we have it. >> why would the terrorists be so mad at us, anyway? >> a lot of people blame the united states for problems around the world. >> i don't get it. >> america is such a big and powerful country that the decisions we make here affect other countries around the world. and a lot of people think that we don't use our power the right way because sometimes the things that we do here can have a negative effect on other countries. and a lot of people disagree

with the decisions and policies that the united states has. >> megyn: and now we know why they didn't want to release the video. we have an e-mail into the school to confirm that they have now yanked the video by safari montage. they said they've been teaching in school ten years, and ten years they've learned about the 9/11 attacks and how he they came about. wow. we're hearing some fresh skepticism today about a decision by the u.s. border patrol to send millions in taxpayer dough to have its uniforms manufactured in mexico. trace gallagher has that story, trace. >> trace: it's vf imagine wear, the same company that made the tsa uniforms a short while back.

the 50 million dollar contract they gave them. and now a 6 to 8 million dollar contract for the border patrol. they have factories in mexico, south and central america, the middle east, the united states. and most of the uniforms for the u.s. government they've contracted for are all made in mexico. the border patrol released a statement and quoting here, there are no domestic preferences, regulations or statutes applicable to department of homeland security customs, border protection that would prohibit the manufacture of items in mexico, in fact, the united states obligations under international agreements require that the agency accept items manufactured in mexico. well, california congressman jackie spear has long said that making border patrol uniforms in mexico is a very bad idea, not just for economic reasons, like the jobs should be here in california, but for national security reasons, saying quote, uniforms have a greater potential are being stolen in mexico where it is more difficult to provide oversight

of factories and cargo. clearly warning that cartel members dressed as border patrol agents would be somewhat problematic. the company itself during their annual report also has some concerns about making the uniforms in foreign countries, saying, again, political or military conflicts heighten terrorism and all concerns that can lead to shipping delays, et cetera. by the way, this company also makes major league baseball uniforms, megyn. those madee in the good ole us of a. >> megyn: thanks, trace. >> trace: sure. >> megyn: not one, but two landmark cases made before the u.s. supreme court this week, they're not just about same-sex marriage, they're about state's rights and power and who gets the right to decide about marriage in this country. and the latest on how the arguments went this morning for the so-called defense of marriage act which defines at a federal level marriage as between a man and a woman.

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>> stocks sliding today over concerns about cyprus, one day after the dow notched its biggest gain in three weeks. and the banks are getting ready to open after weeks. and cyprus decided to head off the fiscal crisis grabbing 40% of the accounts that big depositors keep in the cyprus banks. breaking news out of the u.s. supreme court this afternoon as initial reports from today's argument on gay marriage suggests it was a tough day in court for those defending the federal law that defines marriage as between a man and a woman. the defense of marriage act or doma as it's non, which president clinton signed into law in '96 excludes federal benefits to married same-sex couples. so at a federal level, gay marriage is not recognized under doma. if the court decides that law is unconstitutional, what does

that mean for gay marriage in this country? evan wilson, founder and president of freedom to marry and tony perkins, family research council. gentlemen, thank you both for being here. good to see you. >> good to be with you. >> megyn: let me start with you on this, tony, doma had a tough day in court and in doma's defense it didn't have the federal government there to defend it. normally they get the defense of the department of justice and president obama declined to do that in this case because he doesn't believe the law is constitutional. and they hired a skilled advocate, he defended the law. and if struck down, what does that mean? >> as you know, megyn, there are two components to doma, one is protecting the states and their definition of marriage and the question today the federal definition of marriage, what doma does for the federal government. defining it as you said as a man and a woman. the fact that the government

didn't defend it may have a bearing on what the court does with the case, but if they strike it down the bigger question is how do you define marriage in this country because the federal government obviously has a compelling from in defining marriage when it comes to what it gives benefits to or what it gives money to or subsidizes. so, the door then is open even broader as to how we define marriage. >> i want to ask you, he evan, because as i see it. if doma is struck down, it doesn't mean that gay marriage is now legal in the country? unless the supreme court goes way out on a limb and rules, and the reason it's unconstitutional is because of the equal protection clause, but the summations i read, nobody seems to think they're going that far? >> well, the defense of marriage act, so-called, is the federal law that shays that we're going to have a gay exception to the normal way the federal government treats married couples. all other married couples who get married by licenses issued by the state or other

countries, the federal government doesn't issue marriage licenses, all married couples get all kinds of federal protections and responsibilities, tax treatments, immigration protections, access to health care, social security, and so on, and except for gay couples who are-- >> you don't have to get married twice. we get married in new york, i'm married, period. >> that's right, for more than 200 years the practice has been the federal government honors the marriage legally celebrated, but there's a gay exception created by this law. what the court was looking at today can you have a gay exception to a law? can the federal government say we're going to honor all marriages that states license except the lawfully married gay couples who are going to get none of the federal protections and responsibilities, not the taxes they pay and the social security. >> megyn: the woman who brought this case is an 83-year-old woman who got married to her partner in canada and the partner died and she had to pay estate

taxes she had not have had to pay if she had been married to a man. and that's the plaintiff in the case. what is the answer to evan's question, whether the government as he phrases the issue, can exclude gays from this recognized marriage? >> well, it's the definition of marriage, what is marriage in this country? of course, 30 states have placed the definition as natural marriage in the state constitution. you look at the fact this couple was married in canada. what happens if the man is married in middle east and has multiple wives and imgreats to the country. and there's a definition of marriage and the definition under doma has been consistent-- have been consistent with the vast majority of states in this country. >> megyn: i want to get to that because tony and others have raised this issue of if you've got a fundamental right to marry, whether you're

straight or gay, whatever, you know, whatever you are, you've got a fundamental right to marry in this country and then there has been a concern raised by some that that would then open the door to polygamist marriage down the line because a polygamist will come in and say i have a fundamental right to marry and in my religion, we marry three people. and it was justice sotomayor of barack obama appointee to the bench yesterday who asked the litigants that question. listen to her. >> if you say that marriage is a fundamental right, what state restrictions could ever exist? what state restrictions with respect to the number of people, with respect to -- that could get married, the incest laws that mother and child, assuming that they're the age, i can accept that the state has probably an overbearing interest on protecting a child so they're

of age to marry, but what's left? >> evan? >> yeah, well, actually it's very simple. first of all, the supreme court has acknowledged that there is a freedom to marry. that's a fundamental right. that's not a new question. the freedom to marry has been recognized as something belonging to all of us under the constitution in at least 14 supreme cases. >> megyn: it has, but the question, do you have a right to marry another gay person and-- >> what reason does the government have for denying the freedom to mayrry to guy people. gay people are not saying let's not have no rules, let us have what you have. just as you have the freedom to marry the person you love and making a life with take on that legal commitment and responsibility, so should we. the other questions are other questions, the question, what reason is there to deny couples who made that commitment in life just because they're gay is the

question before the court. >> megyn: that gets right to it, what is the-- i'm short on time and i want tony's response. what is the reason? he is right that it seems like the court is accepting that states can draw a line somewhere. it's not just going to be anybody can marry anybody or anything. it's that the state can draw a line somewhere. but he says there has to be a compelling interest in the argument how compelling the interest has to be. there has to be a good reason and tony, let's get to that. let's get to what is the reason that gays should not be allowed to marry. >> let's look at historically why the government has defined marriage as it has. it's followed the national definition of marriage and we have amassed decades of social research that shows the government has a compelling interest for kids to grow up with a mom and a dad. not just two parents, but a mom and dad and why government extended benefits to marriage because marriage benefits society. if you want to talk about the

rights, let's talk about the rights that have been lost in those places. >> can i answer what tony said before we channing the subject. >> you talk about loss of parental rights, the loss of business owners that have been fined or sued because they haven't participated in same-sex marriages either as photographers or those who-- bakers, so let's talk about the rights that have been lost to those jurisdictions that have created same-sex marriage. we could talk about. >> megyn: and back to evan. go ahead, answer that question if you could. tony, the studies on a mom and dad not just two parents. >> and that's a crucial point. tony perkins had a chance to go into court with witnesses his side wanted to produce and prove what he's saying the fact of the matter is the trial held seven weeks of testimony, evidence, cross examination and there was zero evidence produced because mr. perkins keeps saying there are these studies and so on, but the record is crystal clear there are no such

studies. >> you're wrong, absolutely wrong. >> megyn: no, no, give it back in a second, tony. >> you can say i'm wrong, but when you have a chance to go in court you were silent. the truth of the matter is that-- >> you should read-- >> in front of this court, and the brief in your group, but you haven't been able to produce a single public health psychiatric child welfare association that has-- >> i've got to go, up against a hard break and tony, ask you, separate apart from the mom and dad issue, what we've heard from the supreme court justices, years of history on this and why should we be the arbiters of what's okay in the country. do you see this as more of a democracy issue for the states? look, the states are working this out. if it was inevitable as some would like to say, the court should interject itself in this. look, you don't make radical public policy changes like this overnight. there are unintended consequences when we do things like this. it's being worked out

democratically, we shouldn't label our opponents bigots, we should allow the american public to discuss this and reach a-- >> the reason-- >> i agree with you on the label. leave it on a high note. great debate, smart, informed, respectful, i appreciate it. we'll be back with kelly's court. "i don't really like taking my vitamins." nature made said, "here's new vitamelts." in flavors like juicy orange... ...or creamy vanilla. tasty, smooth-melting vitamin supplements. new nature made vitamelts. made to higher standards. yours. get a coupon on our facebook page.

>> a case of apparent road rage caught on camera has a couple appearing in court today. the cell phone video that caught the confrontation is raising questions who really started this. trace? >> the suspect was bradley turner, driving with his wife and young daughter in newport, north carolina and claim the pickup cut him off so he followed that pickup for 40 minutes all the way back to ive that's when a girl in the the back seat of the truck began videotaping. it picks up here with bradley turner getting out of the car and walking over and watch him go in and he starts the fight punching the guy in the car and two kids in the truck get

out and you can clearly see they are getting the better of bradley turner and punching him, breaking his nose and knocking him to the ground. the wife comes around and hands her husband a gun. it discharges. and points the gun and the two guys get back in the truck and that's where the videotape ends, but not where the story ends because apparently he drove off and then he drove back toward the boys in the truck. and they pick it up from here. listen. >> we walked back outside, we saw him drive by, and pull into a road just past his house and he turns back and coming western-- eastbound on a westbound lane into oncoming traffic and coming back to his house and we pent back inside and shot the truck up and we called 911. >> trace: nobody was hurt by the gunfire, but that man and his wife facing a number of different charges, megyn.

>> megyn: unbelievable, trace. thank you. joining me now to discuss it, jonna spilbor former defense attorney and david, a defense attorney. that man, mr. turner and his wife facing multiple assault charges jonna. he claims he got cut off. he did go over and looked like he threw the first punch from that video, but does it matter if this guy endangered him and his wife and young daughter in the back of his truck on the road? >> megyn, this guy followed that truck full of kids, they're young people, for 40 minutes. come on, that's plenty of time to cool down. i am surprised that they didn't charge him with attempted murder because the gun went off after he followed them for 40 minutes and got out of truck, and you follow somebody that long you're not looking for an apology, hey, kids, throw slow it down. these kids knew somebody was going to get hurt and this guy should be charged with even more. >> megyn: why didn't they charge him with attempted murder when he's firing a gun at them as they're running away, david? >> well, megyn, from his

perspective these kids tried to run him off the road and that was his initial statement. i don't know whether it was cutting him off or an assault with a deadly weapon. if he reasonably perceives that the kids are assaulting him and his wife and small child with a deadly weapon then he can use deadly force in response. now, the question, when does the threat from the kids mitigate. they go back to a house and he comes over and confronts them, yes. and maybe should have ended there. but then they viciously attack him two on one and could have-- >> they viciously attack him? can we cue up that video again. >> they could have killed him and then he wife gets the gun and it doesn't-- >> and watch, there he is. who throws the first punch? and yes, they viciously attacked him after he attacked them. >> when does it start and mitigate? a confusing case, great law school hypothetical, but i don't think he should be charged with assault with a deadly weapon given the circumstances. >> megyn: i love my kelly's court panel.

this is what lawyers do. they brutally attacked him. right. after he brutally attacked them. which is a defense in court. i'm going to show you this again. we'll watch it one more time and get into the other aspect after the break. don't go away. [ crisp crunches ] whoo-hoo-hoo! guess it was. [ male announcer ] pringles, bursting with more flavor.

>> all right. jonna, so let me give it back to you. even though nobody believes that they attacked him brutally first as david seemed to be implicating, force has to be proportionate to the force being used and did these two-- could these two be in trouble and this guy go into court and say, i misbehaved, i was out of control, shouldn't have followed them and shouldn't have thrown that punch, but what they he did to me, watch this video, your honor, was out of line. >> so, it is true that the burden of self-defense, so to

speak can shift during a fight, that's true that can happen. but you've got to look at totality of the circumstances. first the department says i'm going to kill you and then he continues to follow them for 40 minutes. and i would have thought if i were in that truck driving he's going to make good on his threat and then walks over to the vehicle, punches the driver square in the nose, it's game on at that point and even if the burden shifted, megyn, when his wife casually walks out of the car and hands him a gun like it's a pack of gun. hey, baby, here is a deadly weapon for you, i'll be breast-feeding junior in the back seat, it was completely game on. these guys, the two victims are totally self-defense and should not be charged with anything. >> megyn: by the way we don't know whether the gun was loaded, maybe it discharged, and it was loaded maybe why no attempted murder charges and the black eye. the driver victim said on

camera. the guy said he'd kill me and told a different story to local reporters saying he told me he was going to kick my "a", i'm not saying they have to be perfectly consistent, but that's what the defense lawyer will bring up. >> there's a difference between a punch and getting killed. megyn, the problem with the case, i think the only thing outside of mutual combat which isn't a criminal charge when bradley goes at the end and fires the weapon into an unoccupied vehicle, which is a criminal charge. i don't think he's got any defense for that one. >> megyn: that's the problem. even if he didn't have bullets in it when he first fired it he wound up finding the bullets because he went back and shot up the kid's car. >> that's a problem. >> megyn: while he did it the kid was on the phone with 911, he drove away, we ran in the house. he came back and fired shots and the kids were scared ap the driver was out of line. road rage and-- >> take a deep breath. >> megyn: somebody cut you off, do what i do. (laughter)

>> it irritates them so much more. >> looking for an awed graph from you, megyn. >> megyn: all right, you guys, thank you, we'll be right back.