TED: COMING UP IN THE NEXT HOUR OF LOCAL NEWS ON ARIZONA PBS, IT'S OUR SPECIAL SUPREME COURT EDITION OF "ARIZONA HORIZON."

A LOOK AT THE BIG CASES THE HIGH COURT WILL TAKE ON THIS TERM THAT COULD INCLUDE LANDMARK RULINGS ON ABORTION AND THE 2nd AMENDMENT.

>>> ON CRONKITE NEWS, A LOCAL VOLLEYBALL TEAM CELEBRATES SUCCESS ON AND OFF THE COURT.

ALL IN THE NEXT HOUR OF ARIZONA PBS ANNOUNCER: THIS HOUR OF LOCAL NEWS IS MADE POSSIBLE BY FRIENDS OF PBS, MEMBERS OF YOUR PBS STATION, THANK YOU.

TED: GOOD EVENING, AND WELCOME TO THIS SPECIAL SUPREME COURT EDITION OF "ARIZONA HORIZON."

I'M TED SIMONS.

EACH YEAR WE MARK THE BEGINNING OF THE U.S. SUPREME COURT TERM WITH ANALYSIS OF SOME OF THE NOTEWORTHY CASES THE HIGH COURT WILL BE TAKING UP AND THERE ARE IMPORTANT CASES ON THE DOCKET THIS TERM.

OUR GUESTS TONIGHT, ASU LAW PROFESSOR PAUL BENDER AND ATTORNEY STEVEN MONTOYA, PARTNER AT MONTOYA AND PASTOR.

GOOD TO HAVE YOU BOTH.

I LOOK FORWARD TO THE SHOW.

GOT A LOT TO TALK ABOUT HERE.

PAUL, START WITH YOU, LET'S START WITH EXPECTATIONS, AN OVERVIEW.

6-3 MAJORITY COURT HERE.

WHAT ARE YOU LOOKING FOR?

>> LOOKING TO SEE WHETHER THE COURT IS AS CONSERVATIVE AS PEOPLE ARE SAYING THEY IT IS, NOW THAT THE THREE TRUMP APPOINTMENTS ARE ON THE COURT.

THIS IS A GOOD TERM TO SEE WHETHER THE COURT IS REALLY GOING TO MAKE A SHARP TURN TO THE RIGHT OR NOT?

AND IN SOME WAYS, THE BEST WAY TO JUDGE IT BY THE ABORTION CASE THEY'RE GOING TO HEAR IN DECEMBER.

I'M LOOKING TO SEE IF THE COURT IS MORE OR LESS AS IT'S BEEN OR EXPECT MORE CONSERVATIVE THINGS THAN WE'VE SEEN IN THE RECENT PAST.

TED: STEVEN, WHAT ARE YOU LOOKING AT?

>> I THINK THE COURT IS GOING TO PROCEED VERY CAUTIOUSLY.

I THINK WHEN THE COURT DID NOT ENJOIN THE TEXAS ABORTION LAW, THAT CLEARLY VIOLATED ROE v. WADE AND CASEY, PLANNED PARENTHOOD V. CASEY, THERE WAS A PUBLIC OUTCRY AGAINST THE COURT.

I WOULD PREDICT THIS VERY CONSERVATIVE COURT TO MODERATE ITS CONSERVATIVE ACTIVISM IN THE FACE OF PUBLIC DISAPPROVAL IN ORDER TO MAINTAIN THE PRESTIGE AND INFLUENCE OF THE COURT.

TED: THAT'S AN INTERESTING IDEA.

PAUL, DO YOU AGREE WITH THAT?

>> YEAH, I REALLY DO.

ALONG THAT LINE, I THINK SOME WAYS THE MOST IMPORTANT THING FOR THE COURT IS TO DECIDE WHETHER TO OVERRULE ROE v. WADE.

LOT OF PEOPLE THEY THEY'VE ALREADY DONE THAT.

THAT'S WRONG.

IN THE CASE TO LET THE TEXAS STATUTE GO INTO EFFECT, IT WAS PRETTY CLEAR THEY WERE NOT OVERRULING ROE v. WADE, THAT WAS A CHANCE TO OVERRULE ROE v. WADE, THEY PROBABLY HAVE FIVE VOTES TO DO IT BUT DIDN'T DO IT.

I AGREE WITH STEVE, I THINK THEY'RE GOING TO BE CAUTIOUS, AND THERE MAY BE NO BLOCKBUSTERS AT ALL, THEY CAN DEAL WITH THE ABORTION CASE IN A WAY THAT DOESN'T CHANGE VERY MUCH AND ALSO DO THE SAME THING WITH THE GUN CASE.

YOU GOT TO WAIT AND SEE WHAT HAPPENS.

I AGREE WITH STEVE, THAT PROBABLY WON'T BE AN EARTH SHATTERING TERM.

TED: STEPHEN, WE ONCE HAD A KENNEDY COURT.

WHOSE COURT IS THIS NOW?

>> IF I HAD TO PICK, IT WOULD BE JUSTICE KAVANAUGH.

I THINK JUSTICE KAVANAUGH HAS A LOT OF RESPECT AND LOYALTY TO THE CHIEF JUSTICE, AND I THINK JUSTICE KAVANAUGH IS ALSO VERY KEEN ON PROTECTING THE PRESTIGE AND INFLUENCE OF THE COURT ALONG THE LINES OF CHIEF JUSTICE ROBERTS, AND I DON'T THINK HE WANTS TO DO ANYTHING RADICAL TO UPSET THAT PRESTIGE.

I DO, HOWEVER, THINK THAT THERE'S ANOTHER PULL ON JUSTICE KAVANAUGH, AND THAT'S THE PEOPLE WHO PUT HIM ON THE BENCH IN THE FIRST PLACE, AND THAT WOULD BE THE FEDERALIST SOCIETY.

HE'S BEEN PROMISING FOR DECADES TO OVERRULE ROE v. WADE SO I THINK HE'S TORN, BUT LOYALTY TO THE COURT AS AN INSTITUTION WILL PREVAIL.

TED: COULD THIS BE A KAVANAUGH COURT, PAUL?

>> IT COULD EVENTUALLY BE THAT, YEAH.

IF IT WERE RIGHT AWAY, THAT WOULD BE QUITE SURPRISING, BECAUSE HE HASN'T BEEN ON FOR VERY LONG, BUT THERE'S NOBODY ELSE THAT COMES FORTH AS THE LIKELY SWING VOTE OTHER THAN HIM.

EXCEPT JUSTICE BARRETT, SHE SEEMS TO BE IN THE MIDDLE OF THE COURT BUT YOU CAN'T TELL, BUT HER APPROACH TO THINGS SO FAR HAS SEEMED TO BE THAT SHE COULD BE SOMEBODY WHO WOULD EMERGE AS A SWING VOTE.

I THINK IT'S MORE LIKELY IT'S KAVANAUGH, I THINK MOST LIKELY IT WILL BE NOBODY, AND THE COURT WILL BE SCATTERED ALL OVER THE PLACE WHICH FROM MY POINT OF VIEW IS A GOOD THING.

TED: INTERESTING, TALK ABOUT THE CASES IN PARTICULAR.

STEPHEN TALK WITH THE ISSUE OF ABORTION, THE REFUSAL TO BLOCK THE TEXAS ABORTION LAW.

WE HAD AN UPDATE THE LAST DAY OR TWO.

THIS LEADS TO A CASE LATER IN THE TERM OUT OF MISSISSIPPI.

THE COURTS AND ABORTION, WE TOUCHED ON IT.

GO DEEPER ON THIS.

>> WELL, THE COURT AND ABORTION HAS A TORTURED HISTORY.

AS YOU KNOW ROE v. WADE, 1973, ONE OF MY FAVORITE LAW REVIEW ARTICLES OF ALL-TIME IS ENTITLED THE WAGES OF CRYING WOLF.

I THINK ROE v. WADE WAS SLOPPILY DECIDED, BUT IT HAS BEEN THE LAW FOR ALMOST 50 YEARS.

IT IS PART OF OUR CULTURE NOW.

WOMEN AND FAMILIES AND PHYSICIANS HAVE RELIED ON THAT DECISION FOR DECADES.

VARIOUS COURTS, THE BURGER COURT, THE REHNQUIST COURT AND THE ROBERTS COURT HAVE AFFIRMED THAT DECISION.

I THINK THE COURT IS REALLY GOING TO LOSE A LOT OF PRESTIGE AND CREATE A VERY BROAD POLITICAL OUTCRY AGAINST IT, IF IT REVERSES ROE v. WADE RIGHT NOW, SO I THINK THE MISSISSIPPI CASE THAT'S COMING UP, WHICH IS A DIRECT ATTACK ON ROE, I READ THE PETITION FOR CERTIARA, I THINK IT'S GOING TO FAIL.

I DON'T THINK THE MEMBERS OF THE COURT WANT TO JEOPARDIZE THE COURT'S PRESTIGE IN THIS VERY VOLATILE POLITICAL ENVIRONMENT.

TED: WHAT DO YOU THINK, PAUL?

>> I THINK THAT'S RIGHT, BUT I THINK IT'S IMPORTANT TO POINT OUT THAT THERE'S AN INBETWEEN POSITION HERE.

THEY DON'T HAVE TO LEAD THINGS EXACTLY THE WAY THEY'VE BEEN AND DON'T HAVE TO OVERRULE ROE v. WADE, IT'S A WEIRD DECISION TO BEGIN WITH BECAUSE IT SETS THE TIME A WOMAN LOSES RIGHT TO ABORTION AS THE VIABILITY OF THE FETUS, WHICH IS VERY SUBJECTIVE, CHANGES FROM FETUS TO FETUS AND WHAT ADVANCES HAVE BEEN MADE IN MEDICINE.

I THINK THE COURT COULD -- IF I PICKED WHAT THEY WOULD DO, THAT'S GOING TO OVERRULE ROE v. WADE ENTIRELY, BUT I THINK THEY'RE GOING TO CHANGE FROM THE VIABILITY LINE TO ANOTHER LINE.

THE CASE FROM MISSISSIPPI SAYS YOU CAN GET AN ABORTION UP TO 15 WEEKS.

VIABILITY WOULD BE ABOUT 23-24 WEEKS.

I THINK IT'S PERFECTLY POSSIBLE, IN FACT, MOSTLY LIKELY THAT THE COURT WILL SAY, THE RIGHT TO ABORTION REMAINS, BUT WE'RE NOT GOING TO FORCE THE STATES TO STICK TO THE VIABILITY LINE ANYMORE.

AS LONG AS THE STATES LEAVE ENOUGH TIME FOR WOMEN TO HAVE A CHANCE TO EXERCISE THEIR RIGHT TO AN ABORTION, AND 15 WEEKS PROBABLY IS ENOUGH FOR THAT, AS LONG AS THE STATE LET'S THEM DO THAT, IT'S OKAY.

THEY CAN'T ABOLISH ABORTION ALTOGETHER, THEY HAVE TO GIVE THE WOMEN A FAIR CHANCE TO HAVE AN ABORTION IF THEY WANT IT.

THE TEXAS STATUTE THAT WAS INVOLVED RECENTLY WAS SIX WEEKS.

THAT'S NOT ENOUGH TIME.

SO I AGREE WITH STEPHEN ENTIRELY, IT WOULD BE REALLY REVOLUTIONARY FOR THE COURTS TO COMPLETELY OVERRULE ROE v. WADE AND LET EVERY STATE DO WHATEVER IT WANTED WITH REGARD TO ABORTION.

I'M LOOKING FOR AN INBETWEEN DECISION AND THIS IS A GOOD CASE TO DO THAT, I THINK THE 15 WEEK LINE IS A PERFECTLY POSSIBLE LINE.

TED: THE 15 WEEK LINE FOR THE MISSISSIPPI CASE, IS THAT SOMETHING THE COURT COULD DECIDE ON OR IS THAT REVOLUTIONARY?

>> I WOULD CONSIDER IT REVOLUTIONARY AND SCIENTIFICALLY BAD, JUNK SCIENCE.

PAUL IS RIGHT.

VIABILITY, THERE'S NOT A DISTINCT -- IT'S NOT AT 14 OR 15 WEEKS OR 13 1/2, BUT IT'S AROUND THERE.

AND IT CAN BE SCIENTIFICALLY ASCERTAINED, AND IT REALLY HASN'T CHANGED THAT MUCH SINCE ROE v. WADE.

DUE TO BIOLOGY, IT'S REALLY HARD FOR A VERY YOUNG FETUS, DUE TO LUNG DEVELOPMENT OR LACK OF DEVELOPMENT, TO BE VIABLE SOONER THAN 14 OR 13 WEEKS.

SO I THINK THE COURT COULD DO THAT.

I THINK THE COURT WILL BE TURNING ITSELF INTO A LEGISLATURE BY DOING THAT.

I THINK THE COURT WOULD LOSE A LOT OF PRESTIGE.

I THINK THERE WOULD BE A BROAD PUBLIC OUTCRY ON BOTH MODERATE REPUBLICANS AND DEMOCRATS.

I THINK IT WOULD BE A BAD MOVE FOR THE COURT.

ONE THING THAT HAS ALWAYS BEEN MAINTAINED IN THE 48 YEARS THAT ROE HAS BEEN THE LAW IS THE VIABILITY STANDARD, WHICH REALLY IS BASED ON HARD SCIENCE.

EVEN THOUGH THERE IS SOME WIGGLE ROOM THERE, IT'S NOT THAT MUCH.

SO I THINK THAT WOULD BE A BAD MOVE.

TED: PAUL, LET'S TALK ABOUT -- GO AHEAD, REAL QUICKLY.

>> WHAT I'M SUGGESTING IS NOT THAT THE COURT MIGHT SAY THE CONSTITUTIONAL STANDARD IS 15 WEEKS.

I THINK THE COURT MIGHT SAY, AND I THINK IT WOULD BE REASONABLE TO SAY, WE'RE GOING TO LEAVE IT UP TO THE STATES WHERE TO DRAW THE LINE.

EACH STATE CAN HAVE A DIFFERENT LINE, AS LONG AS THEY LEAVE ENOUGH TIME FOR WOMEN TO EXERCISE THEIR RIGHT TO ABORTION.

IF THEY DO THAT, I WAS HOPING IT MIGHT SETTLE DOWN THE CONTROVERSY IN THE COUNTRY, IF THE COURT SAID WE KNOW THERE'S A RIGHT TO AN ABORTION.

WE'LL LET THE STATES DECIDE HOW TO LET PEOPLE EXERCISE IT, AS LONG AS THE STATES DO IT REASONABLY SO WOMEN HAVE ENOUGH TIME TO DO IT.

TED: PAUL, LET'S MOVE ONTO THE IDEA OF A SHADOW DOCKET.

WHAT IS THAT?

PLAYED A LITTLE BIT IN THE TEXAS CASE BUT IS THAT A GROWING CONCERN REGARDING THIS COURT?

>> IT'S A GROWING CONCERN BUT A MISPLACED CONCERN.

THERE'S A LOT OF MISUNDERSTANDING THERE.

THE SHADOW DOCKET IS BETTER CHARACTERIZED AS THE EMERGENCY DOCKET.

THERE ARE SOME THINGS THAT NEED TO BE DECIDED RIGHT AWAY.

YOU DON'T HAVE ENOUGH TIME TO HAVE ORAL ARGUMENT AND BRIEFS.

THAT TAKES SIX MONTHS TO A YEAR TO PREPARE A CASE THAT WAY.

YESTERDAY, I THINK, THE COURT DECIDED NOT TO STOP AN EXECUTION.

THOSE KINDS OF DECISIONS COME UP ALL THE TIME.

YOU CAN'T WAIT A YEAR, IF THE STATE'S ABOUT TO EXECUTE SOMEBODY AND THE INMATE SAYS THE EXECUTION IS UNCONSTITUTIONAL.

YOU GOT TO DECIDE THAT RIGHT AWAY.

THAT'S THE SHADOW DOCKET.

THINGS THEY NEED TO DO ON AN EMERGENCY BASIS, AND THEY MADE -- I THINK THE ONLY CONCERN THERE IS THAT IN DOING THINGS ON AN EMERGENCY BASIS, THEY SOMETIMES HAVE SEEMED TO REFLECT A VIEW ABOUT WHAT THE ONGOING LAW SHOULD BE.

THEY DON'T DO THAT, AND THEY SHOULDN'T BE TREATED AS DOING THAT, BUT YOU SEE WITH THE TEXAS CASE, PEOPLE SAY THEY LET THE TEXAS LAW GO INTO EFFECT, THEREFORE THEY'RE GOING TO OVERRULE ROE v. WADE.

NO, THEY LET IT GO INTO EFFECT BECAUSE THEY COULD, WITHOUT CHANGING ROE v. WADE, THEY COULD LET AN EXECUTION GO FORWARD.

THE SHADOW DOCKET HAS TO BE THERE BECAUSE THERE ARE EMERGENCIES THAT ARISE, THE COURT HAS TO BE CAREFUL NOT TO USE THAT TO MAKE NEW LAW BECAUSE THEY HAVEN'T HEARD FULL ARGUMENT AND HAVEN'T HEARD FULL BRIEFING.

MAY BE DOING A LITTLE BIT MORE THAN THEY SHOULD, BUT THEY ARE NOT DOING ANYTHING ILLEGITIMATE BY DOING THINGS ON A FAST BASIS WHEN THINGS NEED TO BE DONE RIGHT AWAY.

TED: NO ORAL ARGUMENT, NO FULL HEARING, EMERGENCY BASIS AS PAUL OUTLINED THERE.

PEOPLE HAVE A PROBLEM WITH THAT, WHEN, AGAIN, SOMETHING NEW POPS UP, WHEN A CONTROVERSIAL DECISION IS MADE.

>> I HAVE A BIG PROBLEM WITH IT.

FIRST OF ALL, PAUL IS RIGHT.

TRADITIONALLY, THE EMERGENCY DOCKET HAS NOT BEEN A SHADOW DOCKET BECAUSE IT WAS POPULATED ALMOST EXCLUSIVELY WITH DEATH PENALTY CASES, AND EVERYONE ACKNOWLEDGES, DUE TO THE FINALITY OF DEATH, THAT DEATH CASES ARE DIFFERENT, BUT DURING THE TRUMP ADMINISTRATION, THE EMERGENCY DOCKET TRANSFORMED INTO THE FAST TRACK REVERSAL DOCKET OF THINGS THAT OFFENDED THE CONSERVATIVE AGENDA, AND THE NUMBERS TELL IT ALL.

IN FOUR YEARS DURING THE TRUMP ADMINISTRATION, THE TRUMP ADMINISTRATION PREVAILED 28 TIMES WITH EMERGENCY MOTIONS IN NON-DEATH PENALTY CASES.

DURING THE 16 YEARS OF THE OBAMA AND BUSH ADMINISTRATIONS, THE ADMINISTRATIONS ONLY PREVAILED FOUR TIMES IN NON-DEATH PENALTY CASES.

SO THE SHADOW DOCKET, AND IT HAS BECOME A SHADOW DOCKET, AS YOU POINTED OUT, THERE'S NO BRIEFING, NO ORAL ARGUMENT AND THE OPINIONS ARE SUMMARY AND UNSIGNED.

SO YOU DON'T HAVE THE DUE PROCESS TYPICALLY ASSOCIATED WITH ADJUDICATION BEFORE THE SUPREME COURT OF THE UNITED STATES, AND YOU HAVE THE RISE OF POLITICAL ISSUES.

HERE'S ONE EXAMPLE.

THE PRESIDENT ISSUED AN EXECUTIVE ORDER PUTTING UP MORATORIUM ON EVICTIONS AND FORECLOSURES DURING THE PANDEMIC.

I'M NOT SAYING THAT'S JUSTIFIED BUT DESERVED TO BE FULLY BRIEFED BUT, IN FACT THAT WAS OVERRULED ON THE COURT SHADOW DOCKET, WITHOUT ORAL ARGUMENT, WITHOUT BRIEFING AND WITHOUT ALL THE CONSIDERATION THAT SHOULD BE LEFT FOR AN ORDER LIKE THAT, OVERRULING THE EXECUTIVE'S JUDGMENT.

TED: PAUL, IS THE COURT FINDING EMERGENCIES WHERE THERE ARE NO EMERGENCYS?

>> SOMETIMES YEAH.

I THINK THE MOST IMPORTANT THING ABOUT THAT IS THAT THOUGH THE COURT SHOULD NOT USE THE SHADOW DOCKET TO MAKE NEW LAW, BECAUSE YOU SHOULDN'T DO THAT UNTIL THE FULL BRIEFING OR ORAL ARGUING, THEY DID THE RIGHT THING IN THE TEXAS CASE, THEY DECIDED NOT TO LET THE TEXAS LAW FROM GOING INTO EFFECT.

THEY DIDN'T MAKE NEW LAW AND SAID IN THEIR SHORT OPINION, WE ARE NOT OVERRULING ROE v. WADE, NOT SAYING ANYTHING SUBSTANTIVE AT ALL.

IF THEY STICK TO THAT AND MAKE IT CLEAR THAT THEY'RE NOT CHANGING LAW, THEY'RE JUST DEALING WITH EMERGENCY ISSUES IN THIS PARTICULAR CASE, I DON'T HAVE A BIG PROBLEM WITH IT.

IF THEY START DECIDING REALLY BIG ISSUES AND CITING THAT SHADOW DOCKET DECISION AS A DECISION THAT CHANGED THE LAW, THAT WOULD REALLY BE BAD.

>> I DISAGREE.

I THINK THE COURT MADE A HUGE MISTAKE IN NOT ENJOINING THE TEXAS LAW.

WHEN YOU HAVE A FACIALLY UNCONSTITUTIONAL LAW THAT IS REALLY TAKING AWAY A VERY WELL-ESTABLISHED CONSTITUTIONAL RIGHT, ALMOST 49 YEARS FROM WOMEN IN ONE OF THE LARGEST STATES OF THE UNION, I THINK THAT WAS A HORRIBLE POLITICAL ACT, AND I THINK THE COURT ALREADY REGRETS IT BECAUSE THERE WAS A VERY RESOUNDING OUTCRY AGAINST THE COURT FROM THE MIDDLE AND FROM THE LEFT.

TED: RIGHT, RIGHT.

PAUL, WE GOT A GUN CASE -- WE'VE GOT TO KEEP MOVING.

A GUN CASE, OUT OF NEW YORK REGARDING REGULATION AND THE RIGHT TO CARRY AND CONCEAL.

WHAT'S THIS ALL ABOUT?

>> YOU'RE ASKING ME, TED?

TED: YES.

>> WHAT IT'S ALL ABOUT, ANOTHER BIG ISSUE THAT NAY THEY MAY OR MAY NOT DECIDE.

THERE IS AN INDIVIDUAL CONSTITUTIONAL, FUNDAMENTAL RIGHT TO OWN AND HAVE A GUN, BUT THEY NEVER DECIDED WHAT TO DO WHEN STATES TRY TO REGULATE THAT RIGHT.

WHEN STATES REGULATE FREE SPEECH, THEY HAVE TO MEET A VERY, VERY HEAVY BURDEN TO DO THAT.

WHEN STATES REGULATE THE SPEED YOU DRIVE ON THE FREEWAY, THEY DON'T HAVE MUCH OF A BURDEN AT ALL.

OF COURSE, NEVER SAID WHAT ATTITUDE IS GOING TO BE TOWARD STATE ROADS REGULATING DONE.

HERE, ALL THAT HELLER SAID IS YOU HAVE A CONSTITUTIONAL RIGHT TO HAVE A GUN AT HOME FOR SELF-DEFENSE.

THAT'S ALL.

THIS CASE RAISES THE QUESTION OF WHAT THE EXTENT OF THE CONSTITUTIONAL RIGHT IS TO HAVE A GUN OUTSIDE THE HOME, A GUN THAT, WHEN YOU'RE ON THE STREET, THAT'S CONCEALED, CONCEALED CARRY I THINK IS WHAT THEY CALL IT, AND THEY HAVE TO DECIDE WHETHER STATES CAN CONSTITUTIONALLY EITHER STOP THAT COMPLETELY OR MAKE THAT VERY HARD TO DO.

THEY'VE NEVER DONE THAT, AND I THINK THEY'RE GOING TO HAVE TO DO THAT HERE, AND THEY CAN DO IT IN A NUMBER OF DIFFERENT WAYS.

ONE DO, IT ABSOLUTELY AND SAY STATES CAN'T REGULATE THAT AT ALL, ANOTHER WAY IS TO SAY STATES CAN DO WHATEVER THEY WANT.

A THIRD WAY, WHICH IS AN INBETWEEN WAY WHICH IS THE RIGHT THING TO DO IS SAY IT ALL DEPENDS ON THE CIRCUMSTANCES THAT STATES HAVE THE RIGHT TO STOP THE CONCEAL CARRY, IF THEY HAVE GOOD REASON TO DO THAT.

IN THIS CASE, NEW YORK SEEMED TO NEVER GIVE LICENSES FOR CONCEAL CARRY, THERE IS A CHANCE NEW YORK IS ACTING UNCONSTITUTIONALLY BUT DOUBT THEY WILL SAY YOU HAVE THE ABSOLUTE RIGHT TO CARRY A CONCEALED GUN WHEREVER YOU WANT.

IT'S UP TO THE COURT TO FIND THE MIDDLE GROUND.

TED: STEPHEN?

>> I AGREE WITH PAUL.

NOT ONLY DO YOU HAVE A RIGHT AS HELLER AND McDONALD ESTABLISHED TO HAVE A GUN IN YOUR HOME FOR SELF PROTECTION, IT'S GOING TO SAY YOU HAVE A RIGHT TO CARRY A GUN UNDER CERTAIN CIRCUMSTANCES.

I THINK THAT RIGHT WAS CLEARLY ESTABLISHED BY THE 14th AMENDMENT.

WHEN YOU LOOK AT WHAT THE FRAMERS OF THE 14th AMENDMENT DID IN THEIR DEBATES REGARDING WHAT THE 14th AMENDMENT MEANT, THEY TALKED ABOUT THE RIGHT NOT ONLY TO OWN A GUN BUT TO CARRY A GUN.

IN FACT, THE FRIEDMAN BUREAUS ACT OF 1866 PASSED BY THE 39th CONGRESS, THE SAME CONGRESS THAT PASSED THE 14th AMENDMENT, SPECIFICALLY PROVIDED THAT.

SO I THINK THERE IS A RIGHT TO BEAR ARMS OUTSIDE OF YOUR HOME, BUT I THINK PAUL IS ABSOLUTELY RIGHT.

IT'S A RIGHT THAT CAN BE REGULATED REASONABLY.

I DO AGREE WITH PAUL, THEY THINK THE COURT IS GOING TO CONCLUDE THAT NEW YORK WENT TOO FAR BECAUSE YOU HAVE TO HAVE BASICALLY SOMEONE THREATENING TO KILL YOU IN ORDER TO CARRY, HAVE A CONCEALED WEAPON IN NEW YORK CITY, AND I THINK THE COURT IS GOING TO SAY THAT WENT TOO FAR.

OTHERWISE, I THINK THEY'RE GOING TO UPHOLD THE STATE'S RIGHT TO REGULATE CARRYING A GUN.

TED: PAUL, THERE ARE A NUMBER OF RELIGION ISSUES HERE ON THE DOCKET, ONE OF THEM CARSON V. MACON.

TALK TO US ABOUT THE IDEA THE STATE CAN REFUSE TO PAY FOR STUDENTS ATTENDING RELIGIOUS SCHOOLS.

WE HAVE THE VOUCHER THING GOING ON HERE.

GIVE US AN OVERVIEW.

>> THIS IS NOT VOUCHERS, IT IS PRESENT IN MAINE AND VERMONT.

MAINE IS SO SPREAD OUT THAT NOT EVERY SCHOOL DISTRICT HAS A PUBLIC HIGH SCHOOL.

SO THERE ARE KIDS IN A DISTRICT WITHOUT A PUBLIC HIGH SCHOOL, FOR A KID TO GO TO AND MAINE HAS TO DECIDE WHAT TO DO ABOUT THAT.

THEY SAID THAT THE SCHOOL DISTRICT CAN MAKE A CONTRACT WITH ANOTHER SCHOOL DISTRICT TO LET THE KID GO THERE OR THE SCHOOL DISTRICT CAN LET THE CHILD GO TO A PRIVATE SCHOOL AND PAY THE TUITION TO GO TO THE PRIVATE SCHOOL.

THE ISSUE IN THIS CASE IS CAN THAT PRIVATE SCHOOL BE A RELIGIOUS SCHOOL?

SO THAT THE STATE ENDS UP PAYING FOR RELIGIOUS EDUCATION?

THE COURT BELOW, THE FIRST CIRCUIT SAID NO, THE PARENT HAS A RIGHT TO PUT THE KID IN A PRIVATE SCHOOL, AND THE STATE WILL PAY, BUT IF THE PARENT PUTS THE KID IN A RELIGIOUS PRIVATE KID WHERE THERE'S RELIGIOUS INSTRUCTION, THE STATE SHOULDN'T HAVE TO PAY.

TED: AND AGAIN, THE IDEA HERE, THE BACKGROUND, THE BOTTOM LINE IS PAYING FOR A KID TO GO TO A RELIGIOUS SCHOOL.

HOW IS THE COURT GOING TO LOOK AT THIS?

RELIGION COULD BE A REALLY BIG ISSUE WITH THIS COURT?

>> IT IS A REALLY BIG ISSUE FOR THIS COURT, AND IN ANSWER TO YOUR QUESTION HOW THE COURT IS GOING TO LOOK AT IT, THEY'RE GOING TO LOOK AT IT FAVORABLY.

I BELIEVE IT'S CLEAR THE COURT IS GOING TO SAY THAT MAINE'S LAW IS UNCONSTITUTIONAL, VIOLATES THE FIRST AMENDMENT AND THEY'RE GOING TO FORCE MAINE TO FUND RELIGIOUS SCHOOLS IN THOSE RURAL AREAS, BECAUSE OTHERWISE IT'S DISCRIMINATION -- EXCUSE ME -- AGAINST RELIGION, WHICH I DISAGREE WITH, BUT THAT'S THE DIRECTION THE COURT IS HEADED.

TED: INTERESTING, PAUL?

>> THAT'S WHERE THEY'RE GOING.

WITH ALL THESE CASES, THEY HAVE THREE RELIGIOUS CASES THAT ARE POTENTIALLY IMPORTANT.

THAT'S ONE OF THEM.

ANOTHER IS WHETHER A PRIEST, WHETHER THERE'S CONSTITUTIONAL RIGHT OF AN INMATE ABOUT TO BE EXECUTED TO HAVE A PRIEST BY HIS SIDE TO TALK TO HIM AS THE EXECUTION IS PROCEEDING, TO HOLD HIM, TO PUT HIS HANDS ON HIM, AND TEXAS HAS REFUSED TO DO THAT NOW, AND THE ISSUE BEFORE THE COURT IS WHETHER YOU HAVE A CONSTITUTIONAL RIGHT WHEN YOU ARE BEING EXECUTED TO HAVE A RELIGIOUS ADVISER NEXT TO YOU TALKING TO YOU AS THE THING IS HAPPENING, TOUCHING YOU.

I THINK THERE THE COURT IS GOING TO SAY RELIGION RIGHTS PREVAIL AND YOU HAVE THAT RIGHT.

TED: YOU AGREE, STEPHEN?

>> I AGREE, I THINK IT'S AN EASY CASE, NO HARM DONE, HAVING A PASTOR THERE IS NOT GOING TO INTERFERE WITH THE EXECUTION.

I THINK IT'S GOING TO REVERSE THE FIFTH CIRCUIT ON THAT.

TED: AND LAST CASE HERE, PAUL, REGARDING FLAGS ON FLAGPOLES AT BOSTON CITY HALL.

WE GOT A COUPLE MINUTES LEFT HERE.

>> YEAH, IT'S ANOTHER ONE OF THESE CASES THAT DOESN'T GO TO THE HEART OF THE PROBLEM, BUT DEALS WITH AN ISSUE THAT KEEPS COMING UP ALL THE TIME.

BOSTON HAS THREE FLAGPOLES IN FRONT OF CITY HALL, ON ONE OF THEM, THEY PERMIT PRIVATE GROUPS TO RAISE FLAGS IF THE PRIVATE GROUP IS HAVING AN EVENT ON THE PLAZA WHERE THE FLAGPOLES ARE.

HERE IS AN EVENT THAT IS A RELIGIOUS EVENT.

THE EVENT IS PERMITTED, BUT THEY WANTED TO RAISE A RELIGIOUS FLAG, A FLAG WITH A CROSS ON IT AND BOSTON SAID NO, WE'RE NOT GOING TO HAVE A RELIGIOUS FLAG ON THE FLAGPOLE.

AND THE ISSUE BEFORE THE COURT IS WHETHER IT'S CONSTITUTIONAL TO MAKE THAT DISTINCTION TO SAY WE'LL HAVE ANY FLAG THERE, SCIENTISTS ARE DOING AN EVENT, THEY CAN PUT A SCIENTIFIC FLAG ON, BUT IF RELIGIOUS GROUP IS DOING AN EVENT, THEY CAN'T PUT THE RELIGIOUS FLAG ON.

THAT'S AN UNCONSTITUTIONAL DISCRIMINATION AGAINST RELIGION.

I THINK THE COURT IS PROBABLY ON THE RELIGIOUS SIDE OF THAT AND SAY THAT IF YOU CAN HAVE THE EVENT, YOU CAN HAVE A FLAG ADVERTISING THE EVENT AS LONG AS IT'S JUST TEMPORARY.

YOU CAN'T HAVE A PERMANENT RELIGION FLAG ON THE CITY HALL FLAGPOLE, BUT YOU CAN DO IT TO ADVERTISE AN EVENT HAPPENING THAT DAY.

TED: SOUNDS LIKE THIS ISSUE IS RIGHT IN THIS COURT'S WHEEL HOUSE.

>> I AGREE, AND I AGREE WITH PAUL.

I THINK THE COURT IS GOING TO REVERSE THE FIRST CIRCUIT AND SAY THE FLAG CAN WAVE.

TED: REALLY QUICK ANSWERS.

PAUL, START WITH YOU.

WHEN WE DO THE SUPREME COURT OVERVIEW, LOOK BACK ON THE SESSION, WILL WE TALK ABOUT ONE MAJOR RULING?

>> I DON'T KNOW THE ANSWER TO THAT.

I DON'T THINK IT'S GOING TO BE THE ABORTION RULING.

I THINK IF YOU HAD TO PICK ONE, IT WOULD BE THE GUN RULING BECAUSE THEY'RE GOING TO BE SETTING UP WHAT THE TEST IS GOING TO BE FOR THE FUTURE WHEN STATES TRY TO REGULATE GUNS, AND I THINK THERE'S A LOT OF CONFUSION ABOUT THAT NOW AND STATES WANT TO REGULATE THEM.

.

TED: THAT IS IT FOR NOW.

I'M TED SIMONS.

THANK YOU SO MUCH FOR JOINING US.

YOU HAVE A GREAT EVENING.

COMING UP IN THE NEXT HALF HOUR OF LOCAL NEWS ON ARIZONA PBS.

ON CRONKITE NEWS, SUMMER IS OVER, BUT PUBLIC POOLS ARE ALREADY WORKING TO COMBAT AN EXPECTED LIFE GUARD SHORTAGE NEXT SUMMER.