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Shinseki Resigns; VA Controversy Lingers; Same-Sex Marriage Juggernaut; President Obama Announced the End of America's Longest War; No Right to Bear Arms?; Hollywood and Real-Life Murderers

Aired May 31, 2014 - 09:00   ET



BARACK OBAMA, PRESIDENT OF THE UNITED STATES: A few minutes ago, Secretary Shinseki offered me his own resignation. With considerable regret, I accepted.


MICHAEL SMERCONISH, CNN ANCHOR: Hey, good morning. I'm Michael Smerconish. The drum beat of fury has finally caught up with Eric Shinseki. That is our first headline this morning. V.A. chief resigns over delays at hospitals, as the headline blared from the "Washington Post." But really it could have been lifted from any major newspaper in the country.

Today, all the media are covering this story and for obvious reasons. The scandal over American war veterans literally dying while awaiting treatment at V.A. health facilities has no end in sight. But I can tell you where it all began. It began with this network, CNN, with tips that spurred suspicion and then months of investigation into hidden V.A. mismanagement and neglect. The reporter who got the story and continues to run with it is CNN senior investigative correspondent Drew Griffin who just told me that he believes we are about to see even more heads roll.


DREW GRIFFIN, CNN SENIOR INVESTIGATIVE CORRESPONDENT: I think it is nationwide. I think with a strong leader at the V.A., if the right thing happens, you will see hospital directors across the country being fired. That is where I think this needs to go. And perhaps then, those fired employees of the V.A. will be brought down to the Department of Justice and asked to explain why there was so much apparent criminal behavior in changing data, fudging numbers, cooking the books and perhaps, Michael, for one purpose - to get their performance levels up and their bonuses paid.


SMERCONISH: Joining me now two members of Congress, both deeply involved in Veterans Affairs, Mike Coffman, a Republican from Colorado, sits on the Veterans Affairs committee and was one of the first House members to call for Eric Shinseki's resignation. Dina Titus is a Democrat from Nevada. She too sits on the committee. Congress Coffman, when I spoke to Drew Griffin, he told me that he fears that when all is said and done Phoenix will be shown to be the norm, not the outlier. Does that comport with your understanding of this scandal?

REP. MIKE COFFMAN (R), COLORADO: Yes, it really does. I think what we're - first of all there are a lot of great men and women that work for the Veterans Administration and it will haunt them, certainly a lot of them are upset about what is occurring. They certainly contacted my sub committee oversight investigation and turned over information to us. Absolutely, this is systemic. This is nationwide. And I think that certainly there's a criminal element to it in that veterans were denied care because managers were seeking financial gain at their expense.

SMERCONISH: Congresswoman Titus, allow me to play for you something else that Drew Griffin told me that relates to Congress. Let's watch.


GRIFFIN: Well, you know, you can go over to Congress like I did, you can sit in those hearings like I did for the last year. The Republican House led Veterans Affairs committee has been screaming about this. No one paid attention. Over in the Senate, Veteran Affairs committee was a different story. But there have been members of Congress who have been screaming about this and just banging their heads on the wall trying to get the attention of the V.A.. I'm not excusing anybody over there on Capitol Hill. Certainly there has been a lot of blame to go around.

But in the end, isn't it the V.A. secretary who is running the Veterans Administration and not some guys over in Congress?


SMERCONISH: Congresswoman, from an oversight standpoint, what went wrong here from Congress' point of view?

REP. DINA TITUS (D), NEVADA: Well, this is not a short-term problem. This has been going on for decades actually. If you look back over the last 10 years, we had 18 reports issued to this committee about the delay and wait time and the problems specifically with health care at the V.A. we sat in seven hours of hearings just in the two days we were back there this past week with different officials from the V.A. we all have been calling for it.

In fact, the House just recently passed a bill. I voted for it allowing the head of the V.A. to fire people who aren't living up to the standards of providing the best care possible for our veterans.

SMERCONISH: Yesterday, congresswoman, President Obama spoke of record level investment in the V.A. and it raises the question in my mind, are we dealing with a funding issue or a mismanagement issue or a combination of both?

TITUS: Well, I think it is a combination. We put great demands on the V.A. because we want to give the best services possible to our veterans. They earned it and they deserve it and a grateful nation wants to provide that. But just in the last few years, you have seen an increase in the number of veterans who are coming back from the war in the Middle East. You have seen the addition of Vietnam veterans who is suffering from agent orange. The focus on homelessness, the focus on mental health and PTSD. Our demands are great. We need to meet that with increased resources.

SMERCONISH: Congressman Coffman, in today's lead editorial in the "New York Times" it says that some of the Republicans who were Mr. Shinseki's shrillest critics were among those who voted down critical boost in departmental financing. I know you were first to call for his ouster. I've also read in your local newspapers that as recently as January, you voted against the $100 million appropriation to help the V.A. resolve the backlog. Respond to that criticism in the "Times."

COFFMAN: Well, that was an omnibus bill with lots of things certainly in it. (INAUDIBLE) and they got their funding. There was dramatic increases in V.A. funding. That certainly is not the issue. The fundamental issue is transparency and its integrity. And the fact is that the big problem right now is the fact that they were covering up the wait times for financial gain.

So, we need to know the difficulty is not having transparency, you don't know what appropriations are necessary to make the V.A. run when there is not integrity and mismanagement in the organization. It just needs a completely cleaning from top to bottom. The culture needs to change. I think the first step is certainly the firing of General Shinseki.

I want to thank him as a combat veteran myself with service both in the Army and the Marine Corps. I want to thank him for his service to this country. But it did not translate into running, into the V.A. which has a culture of mismanagement, inefficiency and unfortunately, fraud.

SMERCONISH: Congresswoman Titus, you did not call for General Shinseki's resignation. Why not?

TITUS: Well, I think General Shinseki is a good man. He is a war hero himself. With all due respect to my colleague, I thought this was about making change. Not about making headlines. Removing him is not going to change the culture. These are problems that are beneath that are out in the different areas of the different hospitals. That is where you need to see some major changes.

I know Mr. Gibson. I worked with him at the USO here in Las Vegas to get a facility at the airport. He will do a fine job, too, but he has to be brought up to speed. He has only been with the V.A. a few months. I think we will see changes at that lower level. There is transparency now. There has been an audit called for. They are looking at all of the medical facilities. Sixty percent of them have been found to have problems.

I asked for them to look at the Las Vegas hospital to be sure, kind of trust but verify. So I think you will see some changes now. His leaving was noble act on his part. He would like to complete the mission, but it was a symbolic gesture.

SMERCONISH: Quick answer if I may from both members of Congress. Congressman Coffman, I'll start with you - should members be able to join Medicare? Should veterans become automatically in the Medicare program as a quick fix to the problem?

COFFMAN: Well, what veterans need is choices. That is when the wait times are so long, because the system is so inefficient or if there are resource questions, then veterans need choices to be able t go into the private health care system and to have the care reimbursed by the Veterans Administration. I think it would be great to have some competition for the veterans administration.

SMERCONISH: Congresswoman Titus, what do you think?

TITUS: I think the track here is a good system. Aside from this problem, if you start to dismantle the V.A., you're going to find a lot of veterans who will be without care. They can't go into the private sector and just get the kind of care they want automatically because doctors are scarce in many parts of the country.

Try to get an appointment with a doctor in a private practice. You are going to wait months there, too. I think that would make the system even worse.

SMERCONISH: Congressman Mike Coffman, Congresswoman Dina Titus, thank you both so much for being here.

Let's go back to that headline. Shinseki resigns over delays at hospitals. The way I would have written it, "Shinseki Departure Alone Won't cure the V.A."

By most accounts, the murder in California, was mentally ill. His family worried about him, so did his friend but no one took his guns. Why? You're about to hear how that could all change.

And Donald Sterling has been ruled mentally incapacitated. So does that mean he can't be forced to sell the Clippers?


SMERCONISH: Here's a headline from this morning's news that requires redefinition. It's from today's "Washington Post." Police didn't search database showing California shooter had bought guns. Yes, even though California has a centralized database of gun purchases in this instance, deputies did not check the database. Here we've seen it again, the clock winds down to violence by a ticking time bomb and we are incapable of stopping him.

California state assemblyman Das Williams has an idea. He is proposing a way to get guns out of the hands an of the mentally unstable when family and friends fear an eruption might be imminent. Also with us from Chicago, forensic psychiatrist, Dr. Helen Morrison. She's the author of the book, "My Life among the Serial Killers" and has interviewed dozens of serial murderers. Assemblyman Williams, I know this is your home community. I know that it really comes close to the heart, in your case. Give me the short version of your fix.

DAS WILLIAMS, CALIFORNIA STATE ASSEMBLYMAN: Well, the parents in this case saw red flags and close loved ones often see the red flags, but there is no legal avenue for them to appeal to a court to remove weapons or to be able to stop the purchase of weapons. And this proposed law would initiate a gun violence restraining order in which they could take to a court and if the court deems that this person is a possible risk to themselves or others, because of mental instability, they would be prohibited from buying guns and if they have guns in their possession, they would be temporarily taken away.

SMERCONISH: How do you protect the civil liberties of the gun owner in that process?

WILLIAMS: We protect the process by making the burden of proof still being on the state and not on the named individual and the requirement to have a hearing after the court order is made.

SMERCONISH: This is pretty troubling news today from the "Washington Post." Couldn't you agree that in this particular instance, the deputies went to the door. They conducted an interview, but they never accessed that database which is unique to California which would have told them that this man had recently purchased multiple magazines and firearms.

WILLIAMS: It is troubling. If this law had been in place, there would, at least, have been a mechanism for them to have to be initiating the will of the court in the matter to remove any possible firearms.

SMERCONISH: Dr. Morrison, this guy in California, and I really deliberately don't want to use his name. Does he fit the description of a serial killer?

DR. HELEN MORRISON, PSYCHIATRIST: No, he is just a mass murder. He is just someone who has been disenfranchised and feels very angry and is going to get revenge any way he possibly can.

SMERCONISH: I'm listening to Assemblyman Williams' proposal to create some type of restraining order relative to firearms. It seems to me that's going to necessitate increase involvement for mental health professionals. As a psychiatrist, do you think mental health professionals will accept an added role in cases like this?

MORRISON: Yes, I think especially in California that had (INAUDIBLE) of duty to warn. That it becomes imperative that the therapist knows and is able to pass on the information that this may be a dangerous individual.

SMERCONISH: Dr. Morrison, my heart breaks for the family members of the all of those victims. But I would be less than forthcoming if I didn't say that my heart alo breaks for the parents of the alleged perpetrator in this case. Because it seems unlike other instances they were trying to do the right thing. Speak to parents who are out there watching and may have a troubled youth under their roof. What is it that should be looking for, what should they be doing?

MORRISON: What they need to do is to let somebody know that they have a concern. To let somebody know that they have a person in their family who may be dangerous to others and even if it seems too much to do, make that call. Make that call.

SMERCONISH: Do you think that Assemblyman Williams' proposal is one with merit that in a circumstance like this, there would be a recourse for family members and friends to go to law enforcement and say "Look, I think this individual poses a danger and you should seize their firearm"?

MORRISON: Yes, I think it is very important that they know that there is an avenue at which they can stop someone. I mean these parents were driving from their home to try to stop the child before he committed the crime. Can you imagine what it felt like for them to know that their son was going to commit a mass murder?

SMERCONISH: Assemblyman, what is the likelihood of success of your measure? I think that some folks may not understand the politics of California. Jerry Brown, for example, your governor, has a pro-gun record. Is that not fair to say?

WILLIAMS: I would say that he has been discriminating about which gun control bills he has been signing and which ones he has been vetoing. He has done both. He has not been on one side of the issue. I have to tell you, in California, we are sick and tired of this. We feel that the question of how many mass killings have to take place before we take action as a society is a worthy one. I think most of us are very inspired by the words of the victims' father, Mr. Martinez of not one more. We should not let another incident like this happen.

And I think I can't tell you I'm not (INAUDIBLE) enough to say we will be able to stop them all. But I do believe that parents and loved ones often have the red flags. This law will at least reduce the likelihood of them happening again.

SMERCONISH: Assemblyman Das Williams, Dr. Helen Morrison, thank you both very much for being here.

You remember the headline that I showed you, the one about the cops not searching the database for guns. Here's the way I would have written the headline on this story. "When it comes to Mass Killings? Mental Health Matters Most."

Donald Sterling now suing the NBA for more than $1 billion. But it comes at the same time the two doctors ruled him mentally incapacitated. What happens now?

And the hunt for Bin Laden, leading to health workers being murdered. What gives?

And how the CIA is involved in that mess.


SMERCONISH: Time for headlines redefined. The headlines that got the story half right.

The first one comes from the "New York Daily News." Texas Congressman Loses a Seat and now Congress will no longer have any World War II Veterans as Members." I think there is more to the story.

91-year-old Ralph Hall lost the primary last Tuesday in Texas. He and John Dingell were the remaining two World War II veterans in the entire Congress. And for comparison purposes, consider this. In the early 1970s, Congress was comprised of three quarters members who were veterans. Today, we're about 20 percent, one in five.

It is not just that we are losing men of the greatest generation. There is something interesting that Congressman Hall pointed out to the media. He said, "When I joined the Congress in 1981, these were men of shared sacrifice and we had a common bond, in that we've gone to war together and therefore we could pass anything that was in the nation's best interest."

I think he speaks to yet another cause of the partisan gridlock that we're seeing in Washington. So you remember that headline, the headline which said "Texas Congressman Loses a Seat. Now Congress will no longer have any World War II veterans as members. What I would have written, "The Last of Putting Nation First."

Our next headline comes from the "New York Times." Actually, an editorial that said the CIA's deadly rouse in Pakistan. Anybody who has seen the movie "Zero Dark 30" knows that in an effort to determine whether Bin Laden really was behind the wall of that compound in, the CIA concocted a rouse. We had a physician go door t door in an immunization program. But the real purpose was to try to get DNA from the individuals behind that door to figure out are they members of the Bin Laden family.

That is what the "New York Times" is now being critical of. But I think what is important to keep in mind is why we did that. We did that because we didn't want to launch an assault on a house full of innocent individuals. One more observation I would make. I think the fact that today's parents in Pakistan are shunning polio vaccines was an unforeseen consequence.

There is no way they would have known it would come to this when they concocted that rouse to get Bin Laden. You remember the headline, the headline which said "CIA's Deadly Ruse in Pakistan," what I would have written, "CIA Vaccination Rouse Intended to Give Bin Laden his Shots."

Our finally headline comes from "Sports Illustrated." Report says Donald Sterling ruled mentally incapacitated and removed from power. And CNN is also reporting the fact that two neurologists have deemed him incapacitated. I should point out that Sterling's lawyers said this is all "vastly overstated."

It might be a strategy to ease the path for selling the Clippers to the CEO of Microsoft Steve Ballmer for a whopping $2 billion sum. That's because if Donald Sterling is deemed to be mentally incapacitated, it will surrender to his wife the control of selling the franchise. Here's what I think is really interesting. The "New York Times" points out today that Sterling stands to reap a 15,900 percent return on his $12 million investment. Remember that original headline "Donald Sterling ruled mentally incapacitated and removed from power." The headline I would write, "Crazy like a Fox."

Hey imagine this, the decision of whether to rule same-sex marriage unconstitutional sits in your hands and yours alone. What do you do? You are about to hear from that man who made the decision for his entire state and why he came to the conclusion that he did.

And the argument for why we should stay in Afghanistan. You heard that correctly.


SMERCONISH: Hey, kudos to the "Salt Lake Tribune" for knowing news when they see it and now pacing the national media with a simple yet remarkable headline on Wednesday. And here is it. "Hatch concedes gay marriage will likely become legal in the U.S."

Twenty years ago, the idea of Senator Orin Hatch making that assessment would have seen Barcycle (ph). It's legal now in 19 states, thanks to an unrelenting wave of laws and court decisions, state-wide bans against would make that statement farce. It is thanks to laws and decisions of same-sex marriage are under challenge in every state that still has them. Except North Dakota. And federal judges are tossing them out with as much deference as they'd accord a candy wrapper.

The federal judge who struck down the ban in Pennsylvania last week no stronger to big cases. And guess what, he talks to those of us in the media because he thinks it's important that we all understand how our legal sanehood resolves our social squabbles.

Judge John Jones, welcome. Thanks for being on CNN.


SMERCONISH: In 2005 you're the federal judge who stopped the teaching of intelligent design in a public school system. How do these big cases come your way in the Middle District of Pennsylvania?

JONES: At the risk of making a bad pun, since I had an evolution case, it's really by random selection. And that's the way we do things on court so I'd like to tell you it's because I have a certain capability but it just happened that I received both of these cases.

SMERCONISH: So here you were called upon to make a constitutional determination of Pennsylvania's ban on same-sex marriage. And surely you know that in the court of public opinion, the trend is all in the direction of making these things unlawful. Meaning paving the way for same-sex marriage. How do you block that out and approach your task?

JONES: Well, the teachable moment here, I think, and the overarching lesson than I would want the public to understand about judges is that we don't respond to public opinion. That's not part of our calculus whether it's going our way or not. And very frequently courts make decisions that are not with public opinion at that particular time. So it's not part of -- not part of our calculus.

SMERCONISH: I think viewers will look at that map that we put up on the screen and show where same-sex marriage is now lawful and recognized. That all of these decisions are going in the same direction in which you've taken the commonwealth and they'll assume that there is a connection between the two. Meaning the public sentiment and these trends, but you're saying that's not the case.

JONES: Well, we're not blind to the decisions of other courts. And there may be persuasive logic in those other decisions. But it has nothing to do with public opinion or some wave of public opinion.

SMERCONISH: I'm glad that you said that. How developed is the law in the Supreme Court on this issue? Because all the federal judges seem to be doing what you have done.

JONES: The one particular question that was not addressed in the Windsor case that was decided last year is whether there is a fundamental right to marriage that extends to the same-sex couples.

And ultimately, Michael, if the case gets to the Supreme Court, when, I think, it gets to the Supreme Court, it will likely be incumbent upon the court to address that particular issue and that has not been developed at the level of the Supreme Court.

SMERCONISH: Your task in this case was to apply what portions of the Constitution to Pennsylvania's ban on same-sex marriage.

JONES: The due process in the Equal Protection Clauses in the 14th Amendment which are made applicable to the states and in particular to state laws that run afoul of those protections in the Constitution. And those are the things that we applied when we decided the case.

SMERCONISH: When you wrote your opinion, you did it very creatively by citing the marital vows that so many of us have uttered. Speak to that.

JONES: Well, I think that when you have a case like this, where you know the opinion is going to be widely disseminated, you can make it more readable. I hope it's more readable. Some people might disagree with that and might not see it that way but I think that that added something to the mix. And it also showed, I think, poignancy and the compelling nature of the factual basis for the opinion and the stories, if you will, of the individual plaintiffs.

SMERCONISH: Judge Jones, thank you so much for being here.

JONES: Great to be here.

SMERCONISH: I wish more who wear a robe would speak as freely as you do. Let's go back to that original headline, the one that cites the old culture warrior, Senator Orin Hatch, as conceding that yes, gay marriage will likely become legal across the U.S. After than interview this is the headline I'd like to write. He won't say it, but I will. "Judge Jones is on the right side of history."

So many people so happy the president announced he's bringing home the troops from Afghanistan. But not my next guest. Why he would like to see us stay there beyond 2016.

And is it truly your right to bear arms? One of my guests says you were never meant to have that 9 millimeter tucked away in your gun box under your bed. And he thinks he can prove it.


SMERCONISH: Hey, let's take a look at our next headline. "U.S. troops to leave Afghanistan by the end of 2016." That the "New York Times" fast-forwarding straight to the end game of America's longest war. The end is now in sight.

President Obama announced his final withdrawal plan for U.S. troops in Afghanistan on Tuesday to muted resistance from Republicans who say it's too speedy, too driven by politics. With Americans having long ago soured on the war, Obama critics who might otherwise seethed with fury or keeping their powder dry, analyst Michael O'Hanlon has been studying both Iraq and Afghanistan since the invasions began.

In a piece that he wrote for Politico, O'Hanlon offers this caution, "For a war in which Americans have been so patient, we risk losing our cool at the end stage of the effort.

Michael O'Hanlon is with me now from Washington where he's a senior fellow at the Brookings Institution.

Michael, how do we know it is the end stage?



O'HANLON: Well, we don't really know exactly when we'll be done. And that's why I would just prefer some flexibility. I think the president is generally correct to get down to 10,000 troops next year. That is, as you know, far fewer than we've had. We were up to 100,000 just a couple of years ago at the peak of the effort. So there is no doubt we are leaving. The only issue is, do we leave completely by 2016 or do we keep a small residual force if necessary?

And one reason we need that force potentially after 2016, what if, let's say, an al Qaeda leader like Zawahiri shows up in the tribal areas of Pakistan? How are we going to get him without any bases in Afghanistan? So leave aside Afghanistan itself. Our ongoing concern about al Qaeda suggests we might want to some drones still in Afghanistan even beyond 2016. SMERCONISH: As you know, the president delivered a major foreign policy address this week at West Point and seemed to tack a middle road between isolationism and unilateralism. I know you paid attention to the speech as did I. I want to show you a quote, it's not from President Obama, it's a quote from one of his predecessors, if we can put that on the screen. Thanks, Jess.

"In cases involving other types of aggression, we shall furnish military and economic assistance when requested in accordance with our treaty commitments."

This was Richard Nixon. This is the Nixon doctrine. But we shall look to the nation directly threatened to assume the primary responsibility of providing the manpower for its defense.

Did it strike you as Nixonian that which President Obama said at West Point?

O'HANLON: A great piece of history. You and your colleagues there. The Nixon doctrine certainly was in this direction. And some of what George H.W. Bush did in his presidency was also similar in some ways. So yes, I think there are a lot of antecedents and a lot of them are on the Republican side. So this is not really a particularly partisan debate, at least it shouldn't be in my mind, at the very broad level.

I think the real issue is on specifics. I would say on Ukraine, for example, the administration is doing pretty darn well. And also on Iran. I would say on Syria, they are not doing so well. And the same with Libya and Egypt. So I'd rather see that they're at that level of practicality because as you say at the broad level of theology or philosophy, Mr. Obama is not an outliar.

SMERCONISH: Well, interestingly in Syria, had the president done that which he set out to do six months ago, it would have been at odds with the Nixon doctrine and as articulated this week the Obama doctrine.

O'HANLON: Well, you've got to interpret these doctrines. Now what critics have been saying about Syria is that we should have been aiding the insurgents a lot more assertively from 2012 when virtually all of Mr. Obama's national security team advised him to do just that. But he was reluctant. He wanted to keep America out of it. Even in that indirect way. Perhaps because he thought that Assad would fall anyway, perhaps because he wanted to lead a peace effort which we now know has failed so far.

I think Mr. Obama made a mistake at that point. It was an understandable mistake, but look what we've gotten. We've gotten two more years of very severe conflict. Assad is winning. Al Qaeda is rising. And we've got to take a new approach based on the kind of idea in the Nixon doctrine that you mentioned. We've got to be more helpful to the resistance. It doesn't mean American boots on the ground.

SMERCONISH: Final question for Michael O'Hanlon, can America maintain its position as the preeminent, the most powerful power on the globe if in fact we pursue this path which says we're going to get directly involved, we'll fund you, we'll provide military intelligence, but then the burden is on you?

O'HANLON: Well, I think we're doing just fine because we don't take that idea too far. We don't make that the only concept driving our foreign policy. So in the Asia Pacific, for example, it's American military power that's now being reinvigorated not with the intention of fighting China, of course, but to sort of condition China as it rises and as its power increases, and to make sure that any kind of Chinese role in the region is peaceful because it recognizes that we're there and we'll push back if need be with our own forces. Not just through the help we might provide to allies.

So I think Mr. Obama --

SMERCONISH: Mr. O'Hanlon --


O'HANLON: Yes. I think they'll do this in the right balance.

SMERCONISH: Thank you so much for being here. I appreciate your expertise.

O'HANLON: Thanks, Mike.

SMERCONISH: OK. Here again is that headline that I showed you. "U.S. troops to leave Afghanistan by the end of 2016." The way I would have written it, "Obama sites IKE and JFK, but is channeling Nixon."

Let this statement sink in for a while. Your right to bear arms is not your right at all. We're going to take a close look at the Second Amendment in just a moment.

And actor Seth Rogen is singled out for blaming -- for having been blamed, I should say, as an influence on that California shooter who went on a rampage last Friday night.

Is the argument fair? We're going to talk about it.


SMERCONISH: Richard Martinez responded to members of Congress who called to express condolences following his son's death. Chris was gunned down while in a deli during last week's murderous rampage in California, which leads me to my next headline. This one is from NBC News in Los Angeles. "Deputies seized seven guns, 1,000 rounds of ammo from UC Santa Barbara student's home."

The murderer in this case purchased all of his guns from federally licenses firearms dealers. His senseless rampage brings the gun debate back into a rather murky spotlight. Like the argument that the right to bear arms was never meant to be a personal right at all.

I want to read the Second Amendment to you. It's brief, just 27 words. "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

It's a topic of a brand new book, "The Second Amendment: A Biography," written by my next guest Michael Waldman who joins me now.

Michael, how much deliberation went into those 27 words?

MICHAEL WALDMAN, PRESIDENT, NYU LAW SCHOOL BRENNAN CENTER FOR JUSTICE: Well, they're foggy, they're confusing. There was a lot of debate over the Constitution. The Second Amendment was not the marquee item that they were debating. But they talked about these issues in the constitutional convention out in the ratification fight in the states and on the Congress.

And it's pretty clear that what the framers were thinking about overwhelmingly was these militias. Now the militias back then were the state military forces. They did involve all adult men, ultimately all adult white men, being members for their entire lives and they were required by law to own a gun and keep it at home. So it wasn't individual right to fulfill the duty to serve, to serve the state. And --

SMERCONISH: Well, I guess the question that it begs then is does the Constitution recognize an individual's right to a firearm apart from the militia?

WALDMAN: Certainly not in the way I think that the most ardent Second Amendment fundamentalist would say. That what it means is it's a sacred right, no gun law can ever be passed because that would trample on that right. That isn't -- they had gun laws back then as well as people hunting and using guns for other purposes. But more significantly we really can't get the answer by going back I don't think in a time machine and tapping James Madison on the shoulder and asking him, well, what did you mean?

The country has evolved and it's always been the subject of a fight over what it means. The reason we think it means this individual right now is more because of the push and pull of public education and a long campaign by the NRA and others than some kind of pristine original understanding.

SMERCONISH: The Heller case really changed the nature of the debate. Justice Scalia as you described in detail in the book wrote the majority view in the Heller case. It did recognize an individual's constitutional right to a firearm which strikes me at being at odds with Justice Scalia calling himself an originalist or a strict interpreter of the Constitution because as you point out, a well- regulated militia, and everything in the Second Amendment then follows that opening preamble.

WALDMAN: You know, that opinion, Justice Scalia said this was the vindication of his approach of relying on original intent. I would argue and others have criticized it, too, that it really reflected a lot of other things. In fact, the opinion for all its finery dressed up with all the talking about colonial era dictionaries and what words meant, it recognized an individual right which is a pretty common and widespread view these days. But it also said that right is limited, just like other rights and it didn't say very precisely what those limits were.

We're fighting that out now in the courts and dozens and dozens of judges have ruled and overwhelmingly, interestingly they've upheld gun laws. In other words they said, yes, it's an individual right but society still has a right to protect itself and there could be limits but we're continuing to fight it out. This is one of the great debates throughout our time.

SMERCONISH: If I go to the NRA headquarters and I walk in the door, what am I going to see missing from the Second Amendment?

WALDMAN: Well, it's an amazing thing. You go to their headquarters, you walk in the lobby, there on the wall is -- in big letters, in pride of place, the Second Amendment. Except you kind of have to look carefully because they just edited out the part about the well- regulated militia and they have two dots, not even three.

SMERCONISH: Not even three.



SMERCONISH: In other words it said the right of the people to keep and bear arms shall not be infringed.

WALDMAN: Right. And they -- and their view is -- and they would argue that's the part that really matters and others would say, well, no, if you read the debate in the -- in the Congress when they were talking about the Second Amendment, James Madison's original proposal had a conscientious objector clause, saying, well, if you have religious scrupulous about bearing arms, you don't have to do -- your military service in person. So we -- it's changed from this civic right to a more individual right and we can't pretend that's the way it's always been.

SMERCONISH: As you describe in the book, people today, the NRA has been immensely successful because today the perception is that there is this unfetter constitutional right that people have to a firearm, even though you say in the book it's much more complicated than all of that.

Anyway, thank you for writing it. I thought it was really a good read and an informative read, as well.

WALDMAN: Thank you.

SMERCONISH: All right. Remember that headline, the -- and your book is titled "The Second Amendment: A Biography." Want to point that out.

The headline that we began with. "Deputies seized seven guns, 1,000 rounds of ammo from UC Santa Barbara student's home." What I would have written, "The Second Amendment, every word matters."

So let me ask you this. How much are we able to blame the deadly shooting in California on Hollywood? That's right. I said we and you'll understand in just a moment.


SMERCONISH: Hey, one last headline and this one comes from "New York Post." It reads, "Killer virgin sparks a culture war."

We're all trying to make sense of the murder spree by a 22-year-old in Isla Vista, California, last week. A spree that left six victims dead and 13 wounded. And theories abound as to cause. Was it access to weapons? Was it mental health? Was it misogyny?

Well then into the debate stepped Ann Hornaday. She's the film critic at the "Washington Post" and after commenting on the production values of a video that the killer left behind she said his, quote, "delusions were inflated if not created by the entertainment industry that he grew up in." And then she makes specific reference to the movie "Neighbors" which stars Seth Rogen and comedies from Judd Apatow.

Well, neither Rogen nor Apatow were amused at being linked to a mass murderer. Rogen tweeted at Hornaday, he said, "I find your article horribly insulting and misinformed."

I myself tweeted, I said, "I agree with @annhornaday that movies may have informed this unstable young man's ideas, but the key word is unstable." And by that I meant that his unstable mind may have been activated by culture. But culture is itself not to blame.

There's nothing new about killers taking their cue from culture. The gunman who climbed the clock tower at the University of Texas in Austin in 1966 had just finished reading Truman Capote's "In Cold Blood." John Hinckley, you'll remember, shot Ronald Reagan in 1981 so as to impress Jodie Foster whom he had just watched star in the movie "Taxi Driver."

In each instance, cultural influences may have shaped the warped views of the assailants but that's because they themselves were mentally ill. We can't nor should we try to scrub society of all triggers for the mentally ill. Our focus should instead be on better diagnosing those among us who might be susceptible to such deadly outbursts.

Now having said this, there remains a legitimate question for the rest of us. For those of us who are mentally stable and not about to kill innocence. And the question is, have we grown too complacence? Are we too accepting of misogyny? Not because exposure will trigger violent behavior but because our attitudes toward female sexuality have become cavalier because male characters are so entitled in the world of entertainment that we have failed to separate fiction from reality.

Now that's a conversation that I think Ann Hornaday, Judd Apatow and Seth Rogen would all agree is worth having.

So you remember that original headline? "Killer virgin sparks a culture war?" Here's what I would have written. "Hollywood doesn't kill people, people do." That's it for me, thank you so much for watching. I'll see you back here next Saturday and until then have a great weekend and a wonderful week.