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"There's Nothing Wrong With Capitalism"; Will Corporations Bring More Change Than Lawmakers?; Will Walmart Lead The Way For Corporate Gun Control?; Notre Dame's Black Leprechaun Mascot Sparks Controversy; Book: So-Called Merit System Feeds Inequality; The Current Dysfunction In British Politics; Is Legal Pot Not Legal At The Airport?. Aired 9-10a ET

Aired September 07, 2019 - 09:00   ET




MICHAEL SMERCONISH, CNN HOST, SMERCONISH: There's nothing wrong with capitalism, so sang Oingo Boingo, remember? In the 1980s. I'm Michael Smerconish in Philadelphia. Is there finally reason for some optimism on the gun front? Not because Congress and the president are finally acting, but because of the private sector. The list of deadliest mass shootings in the United States in the last year, too many for me to read aloud in a short time. I'll put them on the screen.

No one of these incidents spurred legislative change nor the slaughter of 20 school children and six adults at the Sandy Hook Elementary in 2012, not the execution of 58 on the Las Vegas Strip, the 17 who were shot and killed at Marjory Stoneman Douglas High School in Florida, nor the 11 killed at a synagogue in Pittsburgh. All we got from government was thoughts and prayers, but this week, America's largest retailer and largest private employer did do something.

Walmart's CEO Doug McMillon surprised many with a company memo in which he announced that Walmart was limiting sales on ammunition for short-barrel rifles and handguns, getting out of the handgun market altogether and discouraging open carry in its stores except for law enforcement.

McMillon was responding to an open letter in "The New York Times" published immediately after the August 3rd mass shooting at the El Paso Texas Walmart that killed 22. It was written by my next guest, columnist Andrew Ross Sorkin. In the letter titled, "Dear Walmart CEO, You Have the Power to Curb Gun Violence. Do It."

Sorkin wrote, quote, "What happened over the weekend was not your fault, but it is your moral responsibility to see that it stops. The legally purchased weapons that were used in the mass shootings did not come from Walmart, but guns in America travel through a manufacturing and supply chain that relies on banks like Wells Fargo, software companies like Microsoft and delivery and logistics giants like Federal Express and UPS. All of those companies, in turn, count Walmart as a crucial client." The NRA called Walmart's action this week shameful. It is, quote, "Shameful to see Walmart succumb to the pressure of the anti-gun elites. Lines at Walmart will soon be replaced by lines at other retailers who are more supportive of America's fundamental freedoms."

But those other retailers will presumably not include CVS, Walgreens, Kroger's or Wegmans which have now joined the list of businesses requesting that customers refrain from openly carrying firearms in their stores even when state laws allow it and that list already includes Starbucks, Wendy's and Target which have all asked customers not to openly carry in stores unless they're law enforcement officers.

There's also Dick's Sporting Goods which stopped selling assault-style weapons, high-capacity magazines and bump stocks and ended sales of firearms to people under 21. And Citigroup and Bank of America who have said they're no longer going to finance or advise gun manufacturers. Also Blackrock, the largest investor in the world, sent a letter last year asking tough questions of gun manufacturers and retailers about their practices.

Even the makers of the hugely popular game Fortnite have taken steps removing three weapons out of game play, including the combat shotgun. Hey, maybe Mitt Romney was right when he said that corporations are people too, which leads me to this week's survey question. Go to my website this hour and answer this question. Will the private sector address our gun epidemic in a way that Congress and the president can't or won't?

Andrew Ross Sorkin joins me now. Thank you so much for being here. Were you caught off surprise by Walmart this week?

ANDREW ROSS SORKIN, COLUMNIST AND EDITOR, NEW YORK TIMES: I was. I thought that Doug McMillon might do something and I had gotten hints there might be something afoot, but I did not think it would be as public as it was nor as forceful as it was and I would contend to you that what he's doing in the stores is one thing, but the actual real change here even beyond that is that he also wrote letters to the president, he wrote letters to Pelosi, who wrote letters to Congress saying that the company now supports revisiting the assault weapon ban.

He also supports government research on gun violence. These are major shifts for a company based in Arkansas where the gun culture and guns are a huge part of their heritage and the fact that, as you mentioned, the largest retailer in the country, the largest employer in the country has even taken these steps, has said these words aloud, I think is a major shift.

[09:05:09] SMERCONISH: In other words what you're saying is it's not so much that they aren't selling X or they aren't selling Y ...


SMERCONISH: ... or that they're resistant to open carry, but the role of Walmart as an advocate is the real story here. ROSS SORKIN: Right. I think the real story is you now have corporations saying enough is enough and I don't think these companies, by the way, are against the Second Amendment or against guns. I think what people are doing and CEOs are saying to me is we're looking around and we are seeing that the laws by default are not working. We, Michael, you and I would not be having this conversation if the laws were working the way they're supposed to work and so what are we as CEOs and as leaders supposed to do about it?

And for so very long, many of these executives felt that they couldn't do anything about it, that they shouldn't step out on these types of issues, that these were considered part of the culture wars, but somehow I think over the last year that has changed and I think you're going to see a shift and in the same way that companies have longtime squeezed government and suppliers and clients and all sorts of people over the years for the things that they want, I think you're now going to start to see them use that -- use that influence in a new way on this issue.

SMERCONISH: A point that you've been making in your writings and you also made in, I guess, it was yesterday's episode of "The Daily," this ecosystem.


SMERCONISH: Will you speak to the ecosystem concept and how you think that provides leverage to Walmart and others?

ROSS SORKIN: Well, look, you know, Walmart, as you mentioned and as you had read from the column, you know, has business relationships with all sorts of companies, banks, the distributors. Everybody along the chain, if you will, is involved in this and involved in supporting the gun industry and so the question is whether you could get some of the big companies and some of the big financial companies to say you know what? We only want to do business with retailers that are going to sell guns in a responsible way.

We only want to do business with companies that are going to maybe -- maybe the age limit -- Walmart's raised their age limit to 21 or that's only going to sell certain types of products. You know, there's lots of things that can be done that are completely, I would argue, within the very sort of reasonable sense that would -- that would improve the situation quite materially, but you do need everybody along that chain from the credit card companies to the banks to the retailers to everybody else to get -- to organize effectively and to do it in the proper way.

SMERCONISH: Andrew, I've often made the point that I think we have a gun epidemic problem that is exacerbated by a limitation of data management.


SMERCONISH: And what I mean by that is that in the case of, say, Marjory Stoneman Douglas, there were all these red flags and the left hand and the right hand of government ... ROSS SORKIN: Yes.

SMERCONISH: ... didn't seem to be interconnected. Might the private sector be better equipped to bridge those differences? But if your answer is yes, what about privacy considerations?

ROSS SORKIN: Well, so one of the things that I did last year was look at every major mass shooting in America over the last decade and what you found was in a majority of the cases, the guns were purchased with credit cards and historically, after a mass shooting, what the FBI immediately does is go and get the credit card receipts. That's where they go first. So the credit card companies ostensibly have more access to more information if they so chose to get that access.

Now, currently, the way they've structured it, they don't and so the question again is whether for the private sector, whether the banks and credit card companies and others could step in and effectively track things that are -- and look for unusual and suspicious activity in the same way that they do, by the way -- banks are used today for anti-money laundering, they're used today for human trafficking. There's lots of things that they are tracking.

Now, are there privacy issues? Absolutely, but we do use the the financial system, if you will, to try to track and look for suspicious behavior. That still allows most of America to do what it does on a -- on a daily basis and I don't think would infringe on anybody's rights.

SMERCONISH: What would you say to a critic who says, well, this is all well and good, but in the process, they're letting elected legislators and the president off the hook?

ROSS SORKIN: Well, you know, I don't know if they're letting them off the hook. I think they're stepping into the breach is what I -- is what I would contend and I would argue that long-term, hopefully what you're going to see is them use their leverage and influence on legislation to try to come up with something that's reasonable and something that works.

And the reason I say that is because one of the things that you have to worry about, and I think the steps that some of these companies like Walmart are taking are quite valuable, but what you also don't want is all of these types of sales and suspicious activities to move effectively out from blue chip companies and into the shadows.

[09:10:03] SMERCONISH: Right.

ROSS SORKIN: And so ultimately I think you probably do need legislation or, as I said, you need the ecosystem, the financial system and everything else that's related to it, to actually be helping and working in concert so that they don't move into the shadows.

SMERCONISH: Quick final question. Is this -- I think this is good for America.

ROSS SORKIN: Yes. SMERCONISH: That's my opinion. Is this good business for Walmart?

ROSS SORKIN: You know, it's funny. I think it actually is good business for Walmart. I think a lot of corporations, one of the reasons they haven't stepped out is they worry it would be bad for their business. I don't know if you think the stock market is an indicator of anything, but when Dick's Sporting Goods did this, the stock actually originally fell. When Walmart did this, the stock went up.

SMERCONISH: Interesting. Andrew, that was excellent. Thank you so much for being here.

ROSS SORKIN: Thank you. I appreciate it.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I will read some responses throughout the course of the program. "You are showing your bias by insinuating all guns need to go away. Mom-and-pop sporting goods stores will gladly take the business."

My bias? I am a firearm owner. My bias is this, all my cards are on the table and face up. We have a gun epidemic in this country. I've said before we are not unique relative to mental health. We are not, in America, particularly violent people. There's nothing -- our kids don't play more video games than the kids in Japan. The only thing that distinguishes us from the rest of the world is the Second Amendment and the plethora of firearms in so many houses.

So there's my bias. You know, there's no mystery here. There's nothing behind the curtain. That's where I'm coming from. We've got too many guns in too many hands and I think this is a step in the right direction. I'm just disappointed that it's like the private sector's showing leadership that the government thus far hasn't. That's my view.

I want to know what you think. Go to my website at Answer the survey question. Will the private sector address our gun epidemic in a way that Congress and the president can't or won't?

Up ahead, has the move from aristocracy to meritocracy, a system that rewards hard work and achievement, actually exacerbated income inequality? A Yale Law professor says yes.

And it's college football season. Everybody's pumped. So why is this college mascot causing a furor? Because he's the Notre Dame Fighting Irish Leprechaun, only the second African American one in the school's history.


UNIDENTIFIED MALE: We don't need no power because we always on break (ph).





SMERCONISH: The latest target in America's culture Wars is, of all things, Notre Dame's leprechaun mascot. This year, three students are portraying the symbol of the school's Fighting Irish -- Conal Fagan, who's from Northern Ireland, and two new ones, Samuel Jackson and Lynette Wukie who are both black, the second and third African Americans so chosen, Wukie is the first female leprechaun. Jackson, who is the primary mascot, debuted Monday night for the football season opener, a 35-17 win over Louisville.

One viewer was the head of "Barstool Sports," Dave Portnoy, who sent out a tweet that sparked a social media deluge. "You know what is sad? The internet outrage culture has made me afraid to say that I think the Notre Dame mascot should always be a midget looking ginger." So I'm just not going to say it."

It got over 13,000 likes, 1,000 retweets, there were other racially motivated tweets, enough that Jackson felt compelled to respond. Here's what he said. "Like it or not, this guy right here is still one of your Notre Dame leprechauns. How about we use this negative energy to bring us together this season? See y'all next game. Go Irish."

Joining me now is Mike Berardino of the "Indianapolis Star" who covers Notre Dame and has been covering this story. What do you make of the retweets, the 13,000, the likes that it received?

MIKE BERARDINO, COVERS NOTRE DAME FOR THE INDIANAPOLIS STAR: Well, that's the part, certainly, that gets your attention. I mean, when "Barstool" is out there stirring the pot and not necessarily the pot of gold, that's not a surprise, but certainly the portion of people that seem to agree with the idea that it should be a very limited, incredibly limited group, that would be drawn from to be the Notre Dame leprechaun mascot, we're just talking about a mascot here, that's the part that elevated it.

And then I thought that Samuel Jackson responding after a full day of that sort of debate out there in the social media world and the way he responded, very measured, positive, that certainly was newsworthy.

SMERCONISH: Was it necessarily racist? I mean, in part of the social media back-and-forth, Portnoy said, "I don't think it should be a ripped, tall white guy with black hair either."

BERARDINO: Well, he's certainly entitled to his opinion and I think it's in the eye of the beholder whether something is racist or not. Samuel Jackson himself didn't use that term and seemed to want the issue to go away. He tamped it down, tried to diffuse it, talked about the negative energy. I'm not here to throw that label on it or not, but the reason why we wrote about it and why it seemed newsworthy was the fact that it was -- had a full day of news cycle.

And then I think it's interesting that just three days after the initial tweet, Portnoy pretty much backed down from that concept and suggested he was just joking and that if somebody wanted -- Notre Dame wanted to have a black student mascot, if they wanted to have a female, as they do with Lynette Wukie, or even an Indian person, he said, they could just knock themselves out. So I think he certainly changed his tune a bit in those next three days.

SMERCONISH: You know what struck me is that if you had a little person with red hair, the way that Portnoy seems to think is appropriate, who was a fighter and Irish, I can imagine people would look at that and say you're -- what else are you going to do? Say that he drinks. You're stereotyping the Irish again. You're kind of damned if you do and damned if you don't.

[09:19:57] BERARDINO: Yes and I -- and I think, you know -- and turning this issue around in our minds in these last few days, one of the things an alert reader pointed out and I looked back at it, I mean the very fact that, you know, we have this template of a -- in our minds of just what you described in terms of what a leprechaun is, but if you're really talking about what's historically accurate, there was the Twa people that had come from Africa and were initial settlers of Ireland and they're the ones, apparently, who St. Patrick drove out, not so much snakes which don't really exist in cold-weather areas.

It was a small group of people called the Twa and they were dark- skinned people from Africa and you could make the case that Notre Dame, with two new mascots who are African-American, the second and third in their history, Mike Brown was the first beck in '01, that they finally have it historically accurate.

SMERCONISH: Hey, final thought. I thought that Samuel Jackson handled this with some dignity and some class.

BERARDINO: Yes. I mean, a big part of this job -- and it's quite a process. Every spring, they have wide open tryouts. Anybody can do it. There's a selection committee of 10. This is an ambassador type role. It's not just waving a flag and saying go Irish 100, 200 times a game. He'll be at special events and speak on behalf of the university and the way he handled this first test was very well done.

SMERCONISH: Hey, Mike, thanks for being here.

BERARDINO: Thank you, Mike.

SMERCONISH: Still to come, it sounds counterintuitive, at least to me, but is the dominant cause of rising inequality a system based on merit? A new book makes that case.



SMERCONISH: I used to think that merit was a good thing, merit , to me, meaning simply the rewarding of achievement based on hard work, but a new book has me reconsidering, "The Meritocracy Trap: How America's Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite." It was written by Yale Law School Professor Daniel Markovits. He says meritocracy is a sham. He argues that a meritocracy creates an unwinnable competition, one that excludes working and middle class adults from what he calls the charismatic center of economic life, that it denies the middle class the income and dignity that comes with earning a good living, while blocking working and middle-class children from the education required to get the jobs their parents were denied.

Professor Markovits joins me now. People are watching this and they're saying wait a minute, what could be wrong with a system that rewards hard work?

DANIEL MARKOVITS, AUTHOR, "THE MERITOCRACY TRAP": Thank you so much for having me on. Look, there's nothing wrong with a system that rewards hard work -- hard work in principle, but what's happened is that the rich now buy educations and training for their children that nobody else can even come close to competing with.

Just as a simple example, an elite private school in the United States today spends maybe five times as much per student per year as the average public school and what all that education means is that by the time rich kids start taking the SATs, kids whose parents make over $200,000 a year, score 250 points more on average than middle-class kids and there's just no way that people who go to ordinary schools can compete with that kind of concentrated education and training.

SMERCONISH: Were we better off with an aristocracy?

MARKOVITS: I don't think we were better off with an aristocracy, but we would be better off with the system that had less intense competition all the way to the top. So you could imagine a system in which you needed training and you needed to get good at the things you needed to do in order to be the person you are, the job you want to do, but not in which you had to beat everybody else and always be the best. It's that push always to be the best and to compete all the way to the top that privileges those who have the resources to train in order to win.

SMERCONISH: Professor, my wife and I, within the last 10 days, dropped off three sons at school, college and grad schools, good schools. They're hard workers, they did well, they definitely had advantages by virtue of the fact that we raised them and we raised them in a -- in a well-to-do community. Did we do something wrong?

MARKOVITS: No. Part of the argument of this book is that there are really no villains. There's a system and we're all caught in it and so everybody is responding to the incentives that they have trying to do the best for themselves and their families, but the system is one that favors some and harms others and that's the problem. That's the thing that we need to focus on correcting.

SMERCONISH: Right. And I understand that argument and I think there's merit to it and yet, as I read the book, I continually came back to the observation that at its core, it's still based on hard work. I mean, you speak expansively about Goldman Sachs and white-shoed law firms and the billable hours You know, unlike the age of the aristocracy, those who are benefiting from the meritocracy, they are investing the labor.

MARKOVITS: They certainly are investing the labor, but they're also excluding others. so let me give you an example. Think about taxi cabs. It used to be that to be a cab driver, you had to know the city. In fact, if you wanted to be a cab driver in a city like London, you had to study for about ...

SMERCONISH: The knowledge.

MARKOVITS: ... a year and a half to acquire what was called the knowledge. Now, that was merit-based. You had to know what you needed to do to do the job well and then once you got the knowledge, you could make a living and feed your family off of it. Today, taxi cabs are being pushed out by Uber. The way in which Uber works is a small number of incredibly hard-working, but also incredibly privileged, super-skilled workers design algorithms and apps that make drivers de- skilled. All they have to do today is follow the instructions on their smartphones.

The drivers get paid almost nothing. The elite gets almost all of the income and the critical thing is there is no way to go from being an Uber driver to being one of the people who runs Uber. There's no workplace training. There's no hierarchy to rise through. So we have a kind of a caste system. So what meritocracy has done is its created sort of a new aristocracy, only now based on schooling rather than breeding and that might be better than the old aristocracy, but it's not very good.

SMERCONISH: You say that meritocracy describes or offers an explanation for the rise of nativism, of populism, even for the election of President Trump.


And there's a section of the book called "The Coming Class War" -- will it get violent?

MARKOVITS: I don't know whether it will get violent. But it is the case that meritocracy explains a lot of the resentment that working class and middle class people feel in the country today. Because what meritocracy does is it creates a system that the middle class can't win and then blames individual people in the middle class for not being able to win by characterizing their exclusion from wealth as a failure to measure up and disguising the structural factors that we've been discussing that make it in fact impossible for them to win the competition. And when you're told that --


MARKOVITS: -- don't get advantage and it's your fault, you get angry.

SMERCONISH: Final question, how can we reward hard work? Because I think that's in everyone's best interest, yet, keep avenues open to those who are in the middle class. This is unfair to you but what's the 30-second version of the solution?

MARKOVITS: The solution is to open up and broaden the elite. Right now in the United States, almost all of the major colleges and universities in America are the same ones that existed a hundred years ago.

We have almost no more places at those schools. At the same time, the Ivy League spends twice as much per student per year as it did just 20 years ago. Those schools should double or even triple their enrollments. That would create a much broader pathway to opportunity for everybody and everyone would win.

SMERCONISH: Your book drops formally this week I believe. It's called "The Meritocracy Trap." I really appreciate your being here.

MARKOVITS: I'm so grateful for the opportunity. Thank you very much.

SMERCONISH: Let's check in on tweets and Facebook comments. Catherine (ph), what do we have?

From Twitter, "The world needs ditchdiggers too. Judge Smails."

Hey, Spalding --


SMERCONISH: -- you want to reach me, you make a "Caddyshack" reference. Believe me, it goes right to the core.

Listen, I really -- I thought this book was great. It really got me thinking. And I -- you heard the personalized way in which I asked that one question of the professor because we raised our kids to be achievers. To work hard. To log the hours.

Yes, they had the benefit of great schools that we were able to send them to. And then I read the book and I thought, my God, have we done something wrong because we're part and parcel of what he's describing? There are important messages to that book so read it, "The Meritocracy Trap."

I want to remind you to answer the survey question of the week at

"Will the private sector address our gun epidemic in a way that Congress and the President can't or won't?"

A lot of social media buzz about Andrew Ross Sorkin's appearance here earlier.

Up ahead, after parliament blocked Prime Minister Boris Johnson's no deal Brexit, his own brother quit. And Johnson purged 21 conservative party members including Winston Churchill's grandson. Have England's politics gotten even more dysfunctional than America's?

And there's this. The marijuana tourism is booming economy in several states. When visitors get to the airport to fly home they often have to toss this stash. Will the laws have to change?



SMERCONISH: Perhaps nothing symbolizes the current dysfunction of British politics more than the decision of the brother of Prime Minister Boris Johnson, Jo Johnson to quit the parliament. The two brothers have been on opposite sides of Brexit issues since the 2016 referendum.

MP Jo Johnson said that he'd been torn between family loyalty and the national interest. And the move came after parliament blocked the prime minister's plan to leave the E.U. without a deal. The division caused Prime Minister Johnson to purge 21 conservative party members of parliament who opposed a no-deal Brexit. Among them was Sir Nicholas Soames, the 71-year-old grandson of Winston Churchill who've been in parliament 37 years.

More than four years ago, I interviewed both Soames and Boris Johnson on here on CNN and on my SiriusXM radio program and the subject matter for each was Churchill.

Boris Johnson had just written a biography called "The Churchill Factor: How One Man Made History." And with Soames, I was happy to not only get his remembrances of his grandfather but also ironically his thoughts on polarization.

Here's what he told me on my SiriusXM radio program.


SIR NICHOLAS SOAMES, INDEPENDENT MP: I'll tell you, Michael, I was very surprised when I went back to Washington to see how very, very polarized it has become. And there is a tradition here, as there always used to be in my experience in the Senate when I worked there of people, although there was a political roughhouse and big disagreements -- people really did make efforts to work together, in the national interest and the in interest of their constituents.


SMERCONISH: Stunning to hear that now and how far things have moved across the pond in the last four or five years.

Sir Nicholas and the prime minister both admired the legacy of Winston Churchill. My hunch is that Churchill would have been proud of his grandson, not the prime minister. Churchill was acutely aware of what's possible, others' needs, consensus building and respect.

As pointed out in a recent "New York Times" essay by Ian Buruma, a professor at Bard College, after the war was won Churchill gave a famous speech in Zurich in which he called for the creation of United States of Europe. He believed that only full European integration would stave off another devastating war. Plus, Sir Nicholas now has something else in common with his grandfather. In 1904 at age 30 Churchill himself was deselected in an argument over a different issue that is back in the news, free trade.

By the way, we invited Sir Nicholas to be here today and were informed that his -- quote -- "diary is absolutely chock a block" and he is unable to accept your kind offer. You got to love the Brits.

Still to come, is legal pot getting stuck at the gate? You can buy pot legally in 10 states with more on the way. But you often can't fly with it even between two states where it's legal. Why the current laws are confusing both for consumers and for the TSA.



SMERCONISH: Marijuana tourism is booming, but once the pot is bought legally, can you bring it through at the airport? With recreational marijuana now legal in 10 states and others on the way, consumers, the TSA and local airports are wrestling with confusing laws. Where pot may be legal locally, it isn't legal federally, and it's illegal to transport marijuana across state lines, even between two states where it's legal.

In Colorado, for instance, marijuana sales are up more than $1.5 billion a year. In 2017, those purchasers including an estimated 19 million visitors. Yet, it's illegal to possess recreational marijuana at Denver International Airport.

A TSA spokeswoman told "The Wall Street Journal" that its officers are administrative and can't arrest anybody and aren't actively engaged in joint enforcement and that screeners aren't searching for marijuana or cannabis-infused products. So how is this going to be resolved?

Joining me now is David Bannard. He's a Boston-based attorney who consults with airports on marijuana and other compliance issues.

So, what happens if I'm in a state where it is legal? I have it in my bag, I now get to, you know, the TSA line, and somebody sees it?


DAVID BANNARD, LAWYER: The TSA officer is not a sworn law enforcement officer. So they will call over a law enforcement officer from a local jurisdiction and ask them to resolve the issue.

In jurisdictions where possession is legal, they'll often just ask you to dispose of it. So in some places that may be through an amnesty box. In other places, you may have to go put it down the toilet or in the trash.

SMERCONISH: So, there's a difference --

BANNARD: If you're in a jurisdiction where it's illegal, it's a problem. SMERCONISH: Yes. But even where it's legal, am I right, Counsel, that if I'm at LAX, there may be more -- no pun intended -- lax than at Denver?

BANNARD: Well, it all depends on the local jurisdiction. So, L.A., as a matter of city policy has determined that possession of marijuana within the airport is not a problem. But it is a problem to take it through the security checkpoint. In Denver, they made a policy determination not to allow marijuana within the boundary of the airport itself.

SMERCONISH: Wherein lies the federal jurisdiction?

BANNARD: Federal jurisdiction is apparently from the commerce clause. If you look at the Controlled Substance Act, that's the hook they hang their hat on.

These days that may be a little bit difficult to sustain. Given the intense regulation of marijuana by states that have legalized it. They really track it from seed to smoke, if you will.

SMERCONISH: Right. But where geographically does the state jurisdiction end, and the federal jurisdiction kick in? Is it curbside, when I leave my bag with an attendant? Is it when I get inside and I'm approaching the TSA line?

BANNARD: That's a great question. The federal government has sort of jurisdiction over the airways.

So, I think it's really -- it's when you get into the air, that the federal jurisdiction kicks in. But, of course, by that time, it would be too late to do anything about it. So, the TSA, as they say, in their publications, they're not looking for pot. But if they find it because it is a class one controlled substance under federal law, they will call over local law enforcement.

SMERCONISH: Anecdotally, I'm told that you are hearing those who are making out like bandits are the attendants for rental car returns?

BANNARD: Yes, I've heard stories that people get cold feet at airports where they've bought pot legally and they're thinking about take something home and leave it it's in glove box. And some of the car rental attendants are doing pretty well.

SMERCONISH: What about international travel? I haven't addressed that with you yet.

BANNARD: I think that's a great question. And that's something that is really a serious issue.

People should be very aware that the penalties for possession of marijuana in some countries can be very, very strong. And one airport that I was working with told me that they've been contacted by the diplomatic core of an Asian country, because they -- this country had had a number of tourists that have been coming through customs from this airport and had marijuana in their luggage, and had been subject to fairly stringent penalties. So, for people that are thinking about travel ago broad, it's really important to understand that the laws there are variable as well. But can be very strict.

SMERCONISH: A final quick question. Is there any solution to this patchwork that exists that you've described in the United States?

BANNARD: Well, I think that what we are likely to see is a movement in Congress that stems from all kinds of political philosophies that would devolve regulation of marijuana to the states and would basically take that off of the federal list of controlled substances. And we've already seen the first step in the recent farm bill where hemp was deregulated. And CBD (ph) products made from hemp, up to a certain concentration are now legal.

SMERCONISH: David, that was excellent. Thank you so much.

BANNARD: My pleasure.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. Here's one from Twitter. What do we have?

We are weed friendly across Canada now and can be banned from U.S. if crossing, says Jeff. Hey, Jeff, I can remember when it was the reverse. I can remember anecdotally, from my time practicing law full time, hearing from clients and hearing from friends of Americans who had great difficulty, you know, because maybe they've had some possession conviction in the U.S., now, they get to the Canadian border, and they weren't being let in. It seems like there's been a complete role reversal in that regard.


We need action at the federal level to resolve this discrepancy. That's the bottom line.

Coming up, we'll give you the results of the survey question from If you haven't voted go do it now.

"Will the private sector address our gun epidemic in a way that Congress and the President can't or won't?"


SMERCONISH: Time to see how you responded to the survey question at this hour.

"Will the private sector address our gun epidemic in a way that Congress and the President can't or won't?"

Survey says 85 percent of 7,229 voters say yes. Well, I'm in the yes category. I hope that's the case.

By the way, what I think is most encouraging about this, and I said this to Andrew Ross Sorkin is the data management possibility. I think of the Marjory Stoneman Douglas case, and you know, you hear, well, the police came to the house X times, and the school was on notice of X, Y, and Z, and then there was an attempt to buy a weapon, et cetera, et cetera, et cetera.

You say, why aren't the left and the right hand communicating all this information? Better data management would go so long, I think, so far toward solving some of these issues. Of course you've got to respect privacy at the same time, and therein lies the conundrum.

Catherine (ph), what do we have from social media?


Smerconish, if as you say, you are a gun owner, then you are part of the problem. Period. #Repealthe2nd amendment.

I don't think that's realistic, Robert. Robert, I'm ready for a conversation about the Second Amendment. That's what distinguishing us from the rest of the globe, and I disagree with Justice Scalia's interpretation of the militia language in the D.C. versus Heller case. So, I'm ready for that conversation. I just think it's impractical.

What else do we have?

"Won't curtailing retail sales of guns create a vacuum for gun sales?"

That's one of the problems, Gary. It's one of the problems that instead of dealing with the reputable retailer like Walmart that now we give rise to some shady area of the economy. I'd still rather have Walmart getting involved than not.

One more real quick.

"Smerconish, as a Notre Dame alumnus, I'm not upset because the mascot is a person of color, I'm disturbed because he doesn't have a beard. As for the girl" -- as for the girl -- oh, joke's on me. Joke's on me. That was the end of it I guess.

Listen, he's a good mascot it seems to me. A lot of pep and they're winning.

Join me for my "American Life in Columns" tour, I'm next in Sunnyvale, California on September 30. The October 1 is sold out.

Thanks for watching. See you next week.