This is a rush transcript from "Special Report," March 14, 2013. This copy may not be in its final form and may be updated.
(BEGIN VIDEO CLIP)
SEN. TED CRUZ, R - TX: The question that I would pose to the senior senator from California is would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment?
SEN. DIANNE FEINSTEIN, D - CA: I'm not a sixth grader. Senator, I have been on this committee for 20 years. I was the mayor for nine years. I have studied the Constitution myself. I'm reasonable well- educated, and I thank you for the lecture. Incidentally, this does not prohibit -- you used the word "prohibit." It exempts 2,271 weapons. Isn't that enough for the people in the United States?
CRUZ: I think nobody doubts her sincerity or her passion. And yet at the same time, I would note that she chose not to answer the question --
FEINSTEIN: Congress is in the business of making law. The Supreme Court interprets the law. They strike down the law, they strike down the law.
(END VIDEO CLIP)
BAIER: Well, some fiery exchanges there in the Senate Judiciary Committee today before they passed an assault weapons ban out of committee, a party line vote, 10-8. We're back with the panel. Charles?
CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Well, it was an interesting exchange, and in the end, Cruz overshot. His question was, his argument was you wouldn't tamper with the First Amendment on free speech for example, the way you are tampering with the Second in restricting it by making some weapons illegal.
And the answer that Feinstein ended up with -- suggested by Dick Durbin was, yes, we do with the First Amendment when we outlaw pornography. So that is a large category of speech that is illegal and that therefore, it isn't absolute that every right in the First, or the Second, or the Fourth Amendment is one that you cannot touch.
So I thought Cruz was -- also the manner in which he asked it I think it appeared a little bit offensive. I don't think Cruz helped himself. But on the general argument, Feinstein's side, even though it won in committee, is going to lose. It has no chance in the House and it will probably lose in the Senate.
BAIER: Judge, your take on that exchange?
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: I thought Senator Cruz was terrific for articulating the constitutionalist position of the Bill of Rights that the government can't willy-nilly tamper with these rights. And he revealed the fatal flaw in the thinking of the big government progressives of which was Senator Feinstein is one. They think they can write any law and regulate any behavior they want because they're the Congress and we'll let the Supreme Court worry about it. They are not faithful to the Constitution, notwithstanding their oath, as Senator Cruz would have them be.
BAIER: But to Charles' point about pornography and how that has transpired, that is adjusting the First Amendment?
NAPOLITANO: Yes, it is. It is. Senator Feinstein thinks you can adjust any amendment as long as the court doesn't interfere with it. Senator Cruz would obviously narrow radically the area of human behavior that the Congress can interfere with that's protected by the Bill of Rights.
BAIER: Mara, well go ahead and comment on this, but overall, the assault weapons ban, it gets out of committee, but in the reality --
MARA LIASSON, NATIONAL PUBLIC RADIO: I think the reality is it has an extremely hard if not impossible time. I think background checks, something not necessarily universal but certainly more robust I think has a pretty good chance. I don't know about the ammunition clips, but of those three things I would give this the least thing of finally passing.
BAIER: OK, just so everybody knows, the key provisions that we put up on the screen, as Dianne Feinstein's bill has kind of laid it out. And there you see the ban of the specific weapons, the large capacity magazines ten-plus rounds, the background checks on future transfers, and excluding those specific hunting and sporting rifles of more than 2,200. Charles?
KRAUTHAMMER: And the irony is it's the White House against Senate Democrats. The White House, the president has insisted over and over again he wants to see a vote on this. But Senate Democrats – many of them in red states are loathe to have a vote on this where they would vote against assault weapons or vote in favor of a ban, because a lot of them are up for re-election. This will hurt them. So you have got the administration, the White House pushing and Democratic senators resisting. And that is why I think it doesn't have a chance of passage in the Senate.
BAIER: Judge, how much do you think that this effort fires up the GOP and perhaps even some people in the middle?
NAPOLITANO: I think it does. I think it makes some unique coalitions, as Charles pointed out, Democratic senators running for re-election in states that traditionally vote Republican for president. And it makes people who don't even think about guns all the time because they don't own guns realize that with a simple vote in the Congress some of their personal freedoms could be taken away. This may be the first of many. And therefore, they will rally behind the Ted Cruz argument.
BAIER: On the flipside, Mara, obviously the Sandy Hook families and others are out and about talking about this every day.
LIASSON: That is right. And not necessarily this particular piece of legislation, but universal background checks polls some states over 90 percent support.
KRAUTHAMMER: Well, that will pass but the ban will not.
LIASSON: Yeah, this one is a little harder. People are split on this.
BAIER: That is it for the panel. But stay tuned to see one recent news story that is just plain messy.
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