This is the Cato Daily Podcast for Thursday, July 1st, 2010.

I'm Caleb Brown.

When Stephen Breyer issued his dissent in the McDonald gun case that applied the Second Amendment of states and localities, he wasn't

so much arguing against incorporation as he was re-arguing the Heller case and arguing against

the Second Amendment itself.

So says Cato Institute legal policy analyst David Ritgers.

Briar embraced the idea that the role of courts, particularly under due process in corporation, is to decide what rights are fundamental, what rights are non-fundamental and with this license to write out of the

Constitution of the Bill of Rights those non-fundamental rights.

He would put the Second Amendment in that category.

Write them out of the Constitution?

Make them a dead letter in terms of enforcement.

I think that qualifies as writing them out. Specifically on the Second Amendment, what does he say about that enumerated right in the Bill of Rights?

He points to social science that he says makes the changed circumstances sense the founding

mean that we have to consider this right in a different light than the plain text and the history of not just the Second Amendment,

which was the issue in Heller, but with McDonald, the history of the drafting of the 14th Amendment and the deprivations of the

K K K K and the state governments that freedmen in the South suffered immediately

following the Civil War, but in his view, what he considers

to be persuasive social science on the dangers of firearms being available to the people that that outweighs the plain text,

the history, the intent, all of the things that courts may look at.

We should note that there is plenty of social science on the other side of the issue where having more guns does not make for necessarily a more dangerous society and more crime.

And in fact, John Lott has produced a book, more guns, less crime, now in its third edition,

and it's been 10 years since the last edition where there's 10 more years of data in support of his thesis that more guns can equal less crime.

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