-- antonin scalia, were bound to abide by the federal bill of rights.u!though it initially applied to only actions of congress in our 21st century world it truly does apply particular any in the area of first amendment to states as well. >> jon: i assume his argument?%r would be that is wrongly decided and that is not the interpretation of the 14th amendment that the founders would have wanted otherwise they would have placed it in there. why didn't the founders put in the tenth amendment that not just at congress shall not abridge these laws but that the states shall not? >> in fact, james madison who was instrumental in drafting the federal bill of rights wanted an article prohibiting the states from infringing freedom of religion and establishing religion but he was defeated. he was defeated because massachusetts, connecticut and new hampshire didn't want that to happen. but, in fact, the tide of history was moving with madison. those states did ultimately do that on their own. >> jon: in some respects there's a good kernel of history here that is hold

when one of the lawyers raised the privileges or immune 'tis point, former professor scalia took the wind out of his sails when he said the following. what you argue is the darling of the pro-professorat but also against our jurisprudence. why do you take that aim? everybody else applied the established framework. ok, point number four. this is a question that i am frequently asked during a week like this week when we are not hearing orel argument. it -- oral argument. it tends to come new my house over thanksgiving dinner when one of my cousins say ruoff this week? i bristle and say well, we're not hearing oral arguments but i actually have a lot of work to do, which is true. although i often get the impression that the people who hear that don't believe me. they really seem to have the idea that sitting on the bench and hearing oral argument is our main job. it is not. this is my fourth point. hearing oral argument is a relatively small, and if the truth is small, relatively unimportant part of what we do. for every case that we hear on the merits, we hear one hour of oral argument

they are forced by -- >> explain this statement to me and justice scalia, a regulation of an interesting activity may be essential to a comprehensive regulation of interstate commerce, even though the interstate activity does not itself substantially effect interstate commerce. >> yes, that's true. >> so if you have an act here that you say is inactivity, it does not substantially effect interstate commerce, nonetheless, it is essential to the comprehensive regulation, is that not the issue here as to whether this inactivity or act, is it essential for a comprehensive regulation? >> no, your honor, raich clearly is in plaintiff's favor because first of all you have to have a comprehensive scheme. >> comprehensive scheme. >> what do you mean by outer limit? >> that's as far as those cases, those are the farthest reach thus far that the supreme court has decided with respect to commerce clause the that's what i mean by the outer limits. no case has beyond them. this case would take it beyond raich and wickard? >> are the comprehensive regulations requireable? the activities are part of tha

[laughter] >> my hope is we get sufficient -- >> wouldn't it be easier of that justice scalia's concern to take the journal's position that if you're adjudicating good faith or intent differently he in any way from the federal government that its pre-empted? isn't that what waiting for the as applied challenge means, whether or not you are putting the different requirements on proving good faith? >> no, your honor, and because i was trying to give some of examples of the kind of things that may come up as a practical matter but i think we can get the guidance from this and i hope we can proceed. >> will then let me ask a question directly. if there is on us system does not permit an employer to rely on non-suspect documents with the i-9 documents that are permitted employers to rely on the arizonan systems is no, you can't rely on those is that preemptive or not? you can't rely on online where the arizonan system says the documents or the arizonan system says you can't hire someone who hasn't been approved under the e verification system. is that preemptive? >> i think those will be pro

these days scalia only is no longer a somali honorary consul is so shared with masonic and templar organizations and is the self-proclaimed head of the phantom state of nevada a tiny island off the coast of haiti. effectively exists only on the internet he agreed to be interviewed only and his capacity of the prince of nuts and. see were. so if your country is recognized and you become head of state. then you would have diplomatic immunity. as would any head of state yes you have held diplomatic post haven't you. but that was a long time ago you were somali honorary consul wants to see proof for years yes. there are some people who believe you use this diplomatic role to bring toxic waste into somalia is that true show me show me i have no idea what you're talking about . if you don't want to talk about it or you don't know what i'm talking about i'm sticking to what i said at the door and then won't budge from that so you don't want to talk about it. as i said i can talk to you about nova but that is all . for free for i don't want to drag a plastic to release only are present for a quote from

they are forced -- >> explain this statement to me and justice scalia's current opinion. the regulation of an interstate activity may be essentially to a comprehensive regulation of interstate commerce even though the interstate does not in itself affect commerce. >> that's true. >> so if you have an act here and if you say there's inactivity it does not in your opinion substantially affect interstate commerce. nonetheless, it is essential to the comprehensive regulation, is that not the issue here as to whether this inactivity or act or whatever -- is it essential to a comprehensive regulation? >> no, your honor. raish as i represents the outer limits and raish is in plaintiff's favor. first of all, you have to have a comprehensive scheme. >> this is a comprehens -- what do you mean by outer limits? >> that's as far as wickard and raish that the supreme court has decided with respect to the commerce clause and that's what i mean by the outer limits. there's no case that's gone beyond them and this particular case would take it way beyond raish and wickard. >> the element

>> justice scalia -- >> that is the whole problem. >> but, justice scalia, it seems to me the whole question here -- and first of all, i do not think pre-emption can be a moving target. i think you have to decide it on the basis of what congress had in front of it in 1986. but remember, congress was balancing three, at least, very difficult problems, minimizing burdens on the employers, minimizing discrimination against people who are permitted to be hired, and avoiding hiring people who are not permitted to do so. and how you properly reconcile that is very difficult, but one thing seems to me clear is that that was a choice congress meant to leave to itself and to the federal government to sort out and not to give the states the opportunity to come in where they did. >> exit you are just kind of blinking over the savings clause, except through licensing and similar laws. so that is not a real reservation by congress of this power to itself. >> if you interpret the savings clause as i do, which means truly as a supplement to federal adjudication, then it is a very narrow limitation on the b

justice kennedy said in his opinion, it was really heavily criticized in the courtroom by justice scalia, getting involved in public policy issues. prisons and other institutions that should be the domain of legislatures. but justice kennedy, who wrote the opinion said, we're not about to start stepping into other venues. this is unique to california. they have had decades to try to fix this problem. the state has been under court order for a long time to try to reduce the population. and he did spg very unusual in his opinion. he appended three pictures to it that showed the telephone booth size cages. gwen: yeah, we just showed it. >> yes. it's perfect to show how dramatic the crowding was. so, no, major. over many, many years, california has had a problem and this is very unique to that. >> can you talk about the arizona decision? what was at stake in that immigration decision and how does it project forward to the other arizona law that's much tougher and more controversial? >> yes. in fact that one was controlled by the conservative on the court with justice kennedy with him there.

i tell you, oh, there's justice scalia. there you are. justice alito. hey, boys.ut from under those robes. toga! toga! toga! toga! there's alex trabek of "jeopardy," that boy's smart. he knows a lot. maybe i should put him on the supreme court. let's see the democrats block that one. >> you know it's good to see so many influential guests here tonight, justice scalia, justice alito. >> yeah, all the usual suspects. speaking of suspects, where's the great white hunter. >> i am sorry vice president cheney couldn't be here tonight. i agree with the press that dick was a little late reporting that hunting episode down in texas. in fact, i didn't know a thing about it till i saw him on "america's most wanted." cheney, what a goof ball. shot the only trial lawyer in the country who's for me. i tell you, you reporters would go nuts if you knew the true story. he was as drunk as a skunk. [laughter] on one beer. light beer. oh, people were ducking and diving for cover. i wish i could have been there. [laughter] i saw him walking down the hallway the other day, i looked at

professor scalia took the winds out of sail when he said the following, what you argue is the darling of the (inaudible), and contrary to 104 years of jur jurisprudence and why you take that burden, and when clauses were provided, everyone provided the established framework. point four, this is a question that i am frequently asked a week like this week, when we are not hearing oral argument. and it tends to come up in dinner for thanksgiving, and are you off this week, and i will say, we are not hearing oral arguments but i have a lot of work to do. and which is true. but i get the impression that people who hear that, don't believe me. they have the idea that sitting on the bench and hearing oral argument is our main job. it's not, this is my next point, hearing oral argument is relatively unimportant part. for every case we hear on the mem merits, we hear one hour of argument. others are astonished that we will devote one hour to argument in a major case. in countries like united kingdom and others it is longer. for us it's one hour. and by contrast by the one hour we spend in part

united states supreme court and then we'll be in front of these with the wacky five yale beacon for scalia and thomas so we were assured a good outcome then. you know i hope look at what's happened we've all seen this happen nationally in this country with guantanamo but with the warrantless wiretaps and in our civil liberties have been eroded eroded our last ten years almost a constant pace and in those cases they've at least you know and i don't say at least as in i believe it but they've had as you know there's justification of that it's now it has to be to a national security and most of the time i don't believe for a second it does but at least he has it on the state level what they're doing now and he would have the justification now they're broadening it to many more people it's now not longer people just went out for terrorism it's now anyway and i just i think you're just going to see that this is again this is the conservative wish list because we're seeing what they have always dreamt to do. wing going on the stage with right wing governors right wing legislatures right wing jud

justice scalia's defense says that it is the most radical in junction in our nation's history.e would get your take on a course decision this morning. you can start dialing in now. democrats, republicans, and independents. we want to get your thoughts this morning. we begin with of of los angeles times" front-page story. the supreme court called a crowded prisons in humane and governor brown plans for county jail transfers. it would cost hundreds of millions of dollars to be paid for by tax hikes. that is the "los angeles times." the "washington -- wall street journal" has this. the state system was designed for 80,000 inmates but holds nearly twice that many. the decision comes 21 years after suit was filed on behalf of an inmate alleging that treatment provided was so poor as to violate the eighth amendment prohibition of cruel and unusual punishment. . that is the "wall street journal." the story on the front page of the "new york times" as well. david is a democrat talking about this. what do you think about the supreme court decision? are you with us? caller: yes, when i t

scalia, if you receive the author of corp., it simply gives you the right to exist. you may need to get a separate document. >> but you do not need the type of document that an out-of-state corporation needs. >> that is true. nobody, i think, things of articles of incorporation as a licensing. >> could i just focus the questioning. we keep talking about whether the definition of licensing is what congress intended or not. but you do not disagree that congress at least intended that if someone violated the federal law and at harvard a document -- and harbored illegal aliens, the state can revoke their license. is that correct? >> yes. >> it does not matter if they revoke their right to do business in the state, they can only revoke their articles of corp. if they were filed in that state. it is stopping them from doing business. so the only conflict you're talking about is not the power to stop them from doing business, which you accept they had the power to do that, to revoke the power to do business. you are talking about the adjudication of the issue. >> and enforc

but when one of the lawyers raise the privileges or immunities point in oral argument, professor scaliaook the wind out of his sails when he said the following -- "what you argue is the darling to be sure, but it is contrary to 140 years of our jurisprudence. why you undertake that burden?" and when the decision was announced, only one member of the court relied on the privileges or immunities clause. everyone else up by the established framework. ok, four #4 -- point #four. this tends to come up in my house over fans giving dinner when one of my cousins says, are you off this week? and when someone asked me that question, i'd breslin said, we are not hearing oral argument but i actually have a lot of work to do. which is true. a lot often get the impression that people who hear that do not believe me. the releasing to have the idea that sitting on the bench and hearing oral argument is our main job. it is not. and this is my fourth point. during oral argument is a relatively small and if truth is told relatively unimportant part of what we do. for every case that we hear on the merits,

but regardless of text and precedence, justice scalia says it can't be so because that's not what the drafters of the 14th amendment intended. this is not the american mainstream. following this line of reasoning, the minimum wage would be unconstitutional, schools could still be legally segregated, states could prohibit married couples from using birth control, and i as a woman could be prohibited from standing here today as an elected member of the united states senate. that kind of thinking cannot be a criterion for acceptance onto our federal courts. so some may disagree with liu's statement about constitutional interpretation, but it is hardly a field of the legal mainstream today. let me just tell you what others who were familiar with liu's full record, full record have said about his work. richard painter, the chief ethics officer for president george w. bush relayed similar thoughts after reading -- excuse me -- after reviewing shiew's record. here's a quote -- quote -- "liu's views are part of the legal mainstream, and i attendant independence, rigor and fair-mindedness of h

but regardless of text and precedence, justice scalia says it can't be so because that's not what the drafters of the 14th amendment intended. this is not the american mainstream. following this line of reasoning, the minimum wage would be unconstitutional, schools could still be legally segregated, states could prohibit married couples from using birth control, and i as a woman could be prohibited from standing here today as an elected member of the united states senate. that kind of thinking cannot be a criterion for acceptance onto our federal courts. so some may disagree with liu's statement about constitutional interpretation, but it is hardly a field of the legal mainstream today. let me just tell you what others who were familiar with liu's full record, full record have said about his work. richard painter, the chief ethics officer for president george w. bush relayed similar thoughts after reading -- excuse me -- after reviewing shiew's record. here's a quote -- quote -- "liu's views are part of the legal mainstream, and i attendant independence, rigor and fair-mindedness of h

supreme court where he met with justices scalia and soto so he so -- sotomayer.prince visited the organic garden. he knew the cameras that followed him would bring attention to the work taking place here. >> we wanted to plant something to his honor and asked what was his favorite vegetable and he said leeks, i love leeks and brussel sprouts. >> reporter: most this was the first interaction with royalty and for cassina davis who hoped to meet the prince, she had her two questions ready. >> the main question is how does it feel like being royal? it's like so mighty and the second is kind of a -- it's funny, but do people bother you if you're royal? >> reporter: good question. the prince is in d.c. for several days and he's expected to meet the president at the white house tomorrow. he will give a speech at georgetown and is having dinner at the home of senator yonder rei tomorrow. john cherry tomorrow. >>> news of the death -- john kerry tomorrow. >>> news of the death of osama bin laden set off singing in the streets, but for some seeing his picture again is a tr

justice scalia wrote one dissent that was joined by justice thomas.he said that this order by this lower court was perhaps the most radical injunction issued by a court in the nation's history. he felt that this type of order allows judges to indulge policy preferences and that they exceeded their authority under the constitution and under federal law. justice alito also wrote a dissent that was joined by chief justice john roberts. he agreed that the lower court here exceeded its authority. u=w÷ itsd that the lower court ordered on outdated evidence of what the conditions were presently in the prisons and also that it didn't give adequate weight to public safety. he ended his defense by saying he feared that this order would lead to a grim roster of victims. >> suarez: in other words, that once they let these people out of california prisons that they'll go on to commit new crimes in the streets of the state. >> that's correct. justice kennedy refuted that. he said that the lower court here had taken testimony and had statistical evidence from expert

>> senator, i think that's a first time i've been accused of channeling justice scalia so i will take that as -- >> that was a pretty good statement. but it's not consistent. i think with what you wrote. >> senator, i don't recall -- i would be happy to look at the passage more carefully if you would like. >> i didn't misquote it i think. >> i think you quoted accurately. i think the passage if i recall it correctly was trying to say that judges cannot decide cases, whether it's in this area, welfare rights, or any other area, on the basis of some independent moral theory that they have about what people are entitled to. if anything. and so, that statement is part of an argument i think in the article that says that what judges have to do is they have to set aside their independent moral theories, and not import them into the law. i think the supreme court has been absolutely clear in this particular area, the welfare rights area, that there is that danger that judges unelected and unaccountable based on their own conceptions of justice might try to write that into the law. and iphoto

i think justice scalia once to collapse this. >> it is not on your and commerce? is that not correct? -- is that not in commerce? >> following the court's lead -- i think there is completion either way with respect to that. it does not particularly matter. but the point that justice scalia makes is that the nesses sarid -- necessary regulation gives congress broad powers to wait. >> the real problem -- those cases were on the supply challenges. >> what is the difference in commerce clause jurisprudence? >> i think the court has been a little bit uncertain after salnerno and morales. i think it is our view that it is necessary for proper clause. but the question you are facing here -- can congress regulate the decision to self-insure as part of an overall comprehensive scheme? i think the answer to that has to be yes. they have to adopt a minimum coverage provision. >> it just does not go with their. >> not with draws it does not carry that weight. >> the government has opted to regulate -- >> i am saying without comprehensive legislation if i can explain what cong

when a conservative wins the white house, you expect people like roberts and alito and scalia. when a liberal wirntion wins, yt people like justice ginsburg and elena kagan and sotomayor. that's the way it works. and all of them are well qualified. they just have a different approach to the law. but there are a lot of 9-0 decisions. the one thing that would -- that drives my thinking here is that mr. liu chose not in a article that he wrote as a young man, not in some debate that got carried away but to appear before the judiciary committee and basically say that judge alito's philosophy would create an america where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse. that line probably comes from some case that judge alito was involved in where federal agents may point guns at ordinary citizens during a raid even after no sign of resistance, where the f.b.i. may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room, where a black man may be sentenced to death by an all-white jury fo

it is necessary and proper in light of justice scalia's views. congress's regulatory authority is not [unintelligible] including activities on interstate commerce. they arise from the necessary and proper clause. >> they said that is not part of the commerce clause. >> it is a wonderful question of constitutionality. and i think that just as -- justice scalia wants to collapse them. >> isn't that correct? it doesn't matter for our purposes. >> you want to separate them. >> this court could make a decision on the way. it doesn't particularly matter. i think no one disagrees with the right -- there is broad power to act. it is directly constitutional. it is an otherwise comprehensive regulatory scheme. >> call with -- the problem is that those two faces were really a supply challenge. >> what is the difference between commerce clause jurisprudence? >> this is another area where the supreme court is a little bit uncertain. our view is that it doesn't matter for the necessary and proper clause. the question here hall, the supply challenge is this. ca

record of saying that disclosure did not inhibit free speech and the justice no less conservative than scalia saying standing up to disclose activities helps foster democracy. martha: an editorial in the "wall street journal" says the white house is spinning this as reform, claiming taxpayers deserves know how federal dollars are spent. she says if this required liberal entities to get grants, environmental groups, planned parenthood to disclose also. but it does not. >> if i could, if this is such a great idea, then why didn't the disclose act pass in a democratic senate in the last session? that was an attempt to move legislation that would up end the citizen's united decision. that failed. a majority of democrats. the president don't have a legislative initiative and he's trueing to do with sitting what he couldn't get through the senate. put it in legislative form. send it to the house and see if it becomes law. he knows that won't happen so he's trying to do this. >> it failed by one vote in the senate because of ridiculous laws and senate procedure regarding filibuster. 59 votes. it fel

when a conservative wins the white house, you expect people like roberts and alito and scalia. when a liberal wirntion wins, yt people like justice ginsburg and elena kagan and sotomayor. that's the way it works. and all of them are well qualified. they just have a different approach to the law. but there are a lot of 9-0 decisions. the one thing that would -- that drives my thinking here is that mr. liu chose not in a article that he wrote as a young man, not in some debate that got carried away but to appear before the judiciary committee and basically say that judge alito's philosophy would create an america where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse. that line probably comes from some case that judge alito was involved in where federal agents may point guns at ordinary citizens during a raid even after no sign of resistance, where the f.b.i. may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room, where a black man may be sentenced to death by an all-white jury fo

individuals like gindin and scalia and clarence thomas was concerned since the mid 1930's. every republican president since richard nixon in 1968 has expressly set out to remake the constitutional law in this record and a conservative direction. it's easily cited that a very large extent they succeeded. now we don't realize it because it doesn't happen all let once, the supreme court received case by case not every single ruling has been on the conservative direction. the primary targets of conservatives overturning roe v wade, overruling the school prayer decision, and yet if you look at the sweep of constitutional law you can see that virtually every area conservatives had one. the consistently favored the interest of business over consumers, employees. henry tells a story and i want to start with a story, too. the client was sentenced life in prison with no responsibility for 50 years for stealing $153,000 of videotapes in california. he received a sentence under the three strikes law even though he never committed a violent felony justice stevens pointed out prior to ca

and the opinion for the court, written by justice scalia, was an example of one leading theory of constitutional interpretation. not surprisingly, it was vigorously originalist. the principal dissent by justice stevens was also an originalist opinion, but justice breyer wrote a separate dissenting opinion that was just as rigorously pragmatic. so the theory meant a lot. it meant a lot to the outcome. that was the exception that proves the rule. another case that came along a couple of years later in the wake inheller -- in the wake of heller illustrates this point. this is the second item on my list. most cases are decided by president and not by theory. the case came along in the wake of heller. it is a case called mcdonnell verses the city of chicago -- vs. the city of chicago. this also involves the right to keep and bear arms. heller involved the district of columbia, so it did not have the question of the issue for the states. for the few non-lawyers, let me back up and provide some constitutional background. the provision for the bill of rights was originally to apply only to the federal g

the opinion for the court, written by justice scalia, was an example of one leading theory of constitutionalnterpretation. not surprisingly, it was vigorously originalist. the principal dissent by justice stevens was an originalist opinion. justice breyer wrote a separate dissent and that was true to his judicial philosophy which he has articulated in a number of books. it was just as rigorously pragmatic. this was an example of a case in which theory meant a lot. the choice of the theory that a justice elected meant a lot in the outcome. that was really the exception that proves the rule. another case that came along a couple of years later in the wake of heller illustrates this point. this is the second item on my list -- most of our constitutional cases are governed by precedent and not by theory. the case that came along in the wake of heller which illustrates this point is a case called mcdonald vs. the city of chicago. this is about the second man and right to keep and bear arms, also. this in -- heller involve the district of columbia so it did not involve the second amendment to the

would you recommend more of a scalia? >> yes. [laughter] as with all of these issues, i think the republican candidates are going to roll through town and say i'm for cutting taxes, reducing spending, i am for school and reform. i am for market-based health care reform. i am pro-life. i am pro-traditional marriage. the words of the various candidates are going to sound similar. there will be some differences. the real question for the people of iowa is not who says the words, but who gets it done. who has the record to back these things up. i have done it as an executive in government. i have pointed members to the member -- minnesota supreme court. i am proud of that. i want to make sure the people i put on the court respected this fact, that they should interpret it by the law as written and not substitute or insert their personal or political views. if the law is unclear they should be able to say, this is unclear, it should be clarified by the legislature. not take it into their own hands on the back of a napkin. [applause] >

go about to recommend a supreme court judge -- be specific about like would you recommend more ave scalia type? >> yes. thank you for coming and thank you for your question. i think the republican candidates for president will roll through town and they say i'm for cutting taxes and reducing spending and school choice and reform and accountability and a market- based health care reforms, i'm pro-life, pro traditional marriage, appointing conservative judges, i'm for being tough on terrorism and the like. the words of the various candidates will sound similar. there'll be some differences, but the real question for the people of iowa and the people of america will be not who says the words but who gets it done? who has the record to get these things done? i have actually done it as an executive and a leader. i have appointed leaders to the minnesota supreme court. i support -- i promoted strict constructionist and i wanted to make sure they respected this fact -- they should interpret and apply the law as written and not substitute their political views. if the law is unclear, they should

would you recommend more of a scalia type, or would be more -- >> yes. >> okay. >> thank you for coming and thank you for your question. as with all these issues i think the republican candidates for president are going to roll through town and they'll say look, i'm for cutting taxes, i'm for reducing spending, i'm for school choice and reform and accountability. i'm for market-based health reform. i'm pro-life, pro-traditional marriage, i'm for appointing conservative judges, i'm for being tough on terrorism and the like. so the words of the various candidates will sound similar. there will be some differences, but i think the real question for the people of iowa and the people of america are not who says the word, but who actually gets it done. who has the record to back these things up. so on this and many other things i've actually done it as an executive come as a leader in government. i've appointed members to the minnesota supreme court and i'm proud of it. i appoint strict constructionist. i wanted to make sure the people that i put on the court respected this fact, that they sh

you remember the supreme court case, at 1 point, justice scalia was asked about how many guns you shoulde. he said, you need more than one. this was during the oral arguments. it was clear that he was going through the guns in his closet. you need your turkey gun, you need this and that. justice thomas, who rarely speaks at these things, started to laugh because it was clear what he was doing. i will not go through my closet. let me tell you, i have the guns i need to engage in most of the sports i engage in. do you host: ever carry a gun on your person -- host: do you ever carry a gun on your person? guest: i do not. host: lumberton, texas. go ahead. caller: this question is for mr. keene. i do not think you are a constitutional lawyer. what about the second amendment -- even though they try to categorize it as being a gun owner for hunting, sportsmanship, or whatever -- what does the second amendment put in there to thave the citizen -- to have the citizen be able to have arms to protect themselves should the government become a tyranny? guest: it is therefore all those reasons, primar

conservative wipes the white house, -- wins the white house, you expect people like robertson, alito, and scalia. you also expect people like ginsberg and sotomayor. that's the way it works, and all of them are well-qualified. they just have a different approach to the law, but there are a lot of 9-0 decisions. the one thing that would -- that drives me thinking here is that mr. liu chose not in a article that he wrote as a young man, not in some debate that got carried away, but to appear before the judiciary committee and basically say that judge alito's philosophy would create an america where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse. that line probably comes from some case that judge alito was involved in where federal agents can point guns at ordinary citizens in a raid even of no sign of resist tense or the fbi can install a camera where you sleep on the promise they don't turn it on unless an informant it in the room or a black man can be sentenced to death by an all-white jury of killing a white man. these statements about judge alito and

and justice scalia said it best in the oral argument. he said, you know, i think it's clear when congress passed this law wasn't envisioning anything like the arizona law coming to pass. we think makes pretty clear that arizona can't pass this law. but we'll see how -- how it works out. >> so what are things that got us all the way to the supreme court? >> other than through licensing and similar schemes is the parenthetical exception. so, you know, the whole question is basically how big a loophole that is in practice and, you know, really in our view whether it can be looked at so broadly, it swallows the rule. because arizona's goal when it created this law i think is quite clearly to create a very different penalty scheme than the one that congress enacted. and to create its ownystem for deciding which employers have violated the law and which have not. >> so, david, you were the principal deputy, counsel to dhs when the obama administration recommended to the supreme court they take this case. what was behind the government's thinki

you remember the supreme court case, at 1 point, justice scalia was asked about how many guns you should have. he said, you need more than one. this was during the oral arguments. it was clear that he was going through the guns in his closet. you need your turkey gun, you need this and that. justice thomas, who rarely spks at these things, started to laugh because it was clear what he was doing. i will not go through my closet. let me tell you, i have the guns i need to engage in most of the sports i engage in. do you host: ever carry a gun on your person -- host: do you ever carry aun on your person? guest: i do not. host: lumberton, texas. go ahead. caller: this question is for mr. keene. i do not think you are a constitutional lawyer. what about the secondmendment -- even though they try to categorize it as being a gun owner for hunting, sportsmanship, or whatever -- what does the second amendment put in there to thave the citizen -- to have the citizen be able to have arms to protect themselves should the government become a tyranny? guest: it is therefore all those reasons, primaril

. >> even though -- >> justice scalia is trying to determine if there is a part of the scheme.arted out by saying he overall, is a regulatory scheme. it is an essential part of a scheme that ultimately, the aggregate population will have to participate in. >> even if you had an otherwise valid comprehensive regulation, the difference is that they conceded that the overall statute, and they wanted to be exempt out of it themselves. even if you had an otherwise regulable scheme, you need at least three components. even if this is going to regulate something overall, it will have less noncommercial activity. first, it means the have activity. second, it needs to be evolved in the producing and distributing, or of another commodity. and at least have established interstate market. in this particular case, it doesn't meet those criteria on the edges that would otherwise be a comprehensive, constitutional scheme. they're not involved in distributing, producing or consuming the product. this is clearly the insurance market. >> it appears on the eighteenth or nineteenth. it is somethin