Research and Writing Projects

 

Mass Murder

The applicant is writing a book entitled Mass Murderers: Who? How? Why? The gun prohibitionists are inaccurately blaming guns for mass murders. The applicant's book addresses the question of whether gun ownership-and specifically ownership of "assault weapons"-causes acts of mass murder. The applicant will also address mass murders across the world, including mass murders in countries that have restrictive firearms laws. The book will also address the use of explosives and other non-firearm weapons. The applicant will discuss the causal factors related to mass murders and show that there is no correlation between access to firearms and mass murders.

Many people are unaware that almost ¼ of current American mass murders do not involve guns. So far (and I have not yet completed the 20th and 21st centuries), I have identified 529 mass murders in U.S. history with a total of 6,959 deaths. Of those, 291 involved a single weapon type (many of the others involve multiple weapons: ax, knife, and blunt objects being a common combination): 141 incidents involved a firearm, and 154 were non-firearm incidents. Where a single weapon type is used, non-firearm mass murders are usually much larger death tolls (many dozens dead from arson mass murders, thousands dead from airplane mass murders, dozens to hundreds dead from explosives mass murders).

[T]he common factors in most mass murders worldwide are severe mental illness, followed by political terrorism. So far (and I have not yet completed the 20th, and 21st centuries), 24% of incidents have mental illness as a proximate cause; 4% with mental illness likely, 18% are robbery, 4% are acts of terrorism, with a fairly odd mix of other causes.

One chapter of the book is especially suited to a law review article countering the gun prohibitionists' argument that certain classes of firearms make the Unites States exceptional in regard to mass murder problems. The title: "Mass Murder: American Unexceptionalism." The applicant is submitting it to law reviews. It is currently available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3055877 and at https://thecrimereport.org/2017/11/16/is-mass-murder-exceptionally-american/.

[M]ass murder is hardly a modern problem: mass murder in America was a problem throughout the 17th, 18th, and 19th centuries, yet it did not prevent ratification of the broad guarantee recognized in DC v. Heller, incorporated to limit the states in McDonald v. Chicago, and the numerous state constitutional guarantees.

In April, 2018, the applicant participated in a 10th anniversary Heller symposium at Southern Illinois University School of Law. He presented a paper titled, "Mass Murder: American Unexceptionalism, D.C. v. Heller, and 'Reasonableness'" which will appear in a subsequent Southern Illinois University Law Journal. In September 2018, the applicant gave a presentation at a Texas Bar legal seminar. The applicant gave a presentation at a Second Amendment symposium at Lincoln Memorial University Law School in Knoxville, Tennessee, in January 2019. The applicant has written a paper entitled "Would the authors of the Second have been so expansive in its protections had they known about our mass murder problem?"

The applicant has also answered media queries concerning the relationship between mass murder and mental illness. The applicant gave an interview with a Wall Street Journal reporter in February 2019 and was a guest at a talk show on WURD in Philadelphia. The applicant was a speaker local NPR station town hall meeting about gun control in which he addressed the issue of mass murder.

More recently, the applicant has finished his research to 1948.

American population grew fast at the end of the 19th century; mass murders also seem to increase per capita; and therefore mass murders grew more quickly … . There is evidence that mass murders declined in the 1940s and 1950s.

Changes since 1920 seem to be more firearms, there is a big rise in gangland killings during Prohibition. There seem to be fewer axes and hatchets because less wood stoves I surmise. Poisoning seems to decline, perhaps because forensic medicine's ability. … Train derailment remains popular, as do hammers and knives.

I will stop gathering data in 2003, because the very complete USA Today/Northeastern University mass murder data base starts in 2004. The two databases will make a very comprehensive collection for criminologists to use.

The data base and the details will be considered wonderful for criminologists and enhance the Civil Rights Defense Fund's status as a funder of serious scientific research

Gun Violence Task Force.

The applicant informs that in December 2012, President Obama created a Gun Violence Task Force, headed by then Vice President Joe Biden, to solicit proposals for gun control. Records related to the Gun Violence Task Force have since been turned over to the National Archives and are subject to the Freedom of Information Act.

On March 29, the applicant submitted a FOIA request to the National Archives for all records of the Gun Violence Task Force. "This is likely to be a gold mine of material, which can be used to educate our members as to the internal deliberations of those who oppose the right to arms."

The applicant informs that the National Archives and Records Administration is currently processing his FOIA to ensure that none of the documents are privileged or classified and they will notify the applicant when the documents are available for inspection.

The Firearm Owners' Protection Act.

The applicant is writing a book about the Firearm Owners Protection Act of 1986 ("FOPA") to educate and help attorneys to properly use FOPA and successfully defend their clients. The book will explain why a federal gun case is different than other cases.

… FOPA made federal firearm law depart from the usual criminal law-with all the departures helping the gun owner. Specific intent is required for prosecutions, forfeitures, and dealer license revocations. Forfeitures have deadlines, and many strict requirements. You can recover attorneys' fees for a successful criminal defense, and they are mandatory for a defense forfeiture win. … Revocation of dealers' licenses was likewise tightened, in ways that ATF routinely violates.

The book will outline changes in the law, major case law, the relevant statutory history, committee reports, floor speeches, and excerpts from key hearings over the seven years that FOPA was under consideration.

The applicant informs that, during this reporting period, he has written more than half the book, "having finished the introduction, the changes created by FOPA, state of mind requirements, and most of the discussion of defending particular charges." He is currently researching and writing about case law relating to the restoration of civil rights after conviction.

Research and Writing Projects

The applicant is currently working on a number of research and writing projects, including the following:

Supreme Court Justices Kavanaugh, Barrett, and Thomas interpret the Second Amendment according to its "text, history and tradition," without using standards of review or other balancing tests. If a form of gun control does not accord with the text, history and tradition of the Amendment, it is unconstitutional, even if it would pass strict scrutiny or intermediate review. Under this test, almost all arms restrictions are unconstitutional.

The applicant is researching and writing articles addressing early American firearms regulations and the Second Amendment's test, history and tradition. The applicant is compiling a history of arms restrictions in Britain and America, including the common law history in Britain, laws in the colonies, and in the early states.

… [H]andgun registration is a creature of the early 20th century, and long arm registration is one of the 1960s. The same is true of requiring permits for open carry of handguns. Even today, I can likely prove that all these are present in a distinct minority of states. Almost all other requirements date from the 1970s and 1980s. "Assault weapon" restrictions of course spring from some Violence Policy Center propaganda in the 1990s. I'd also have to examine such restrictions as did exist in the framing era (the Statute of Northampton, powder storage requirements in cities, etc.) and show why modern laws cannot be validly analogized to these.

Thus far, I've found the only arms restrictions that date back to the Founding periods of 1791 and 1868 are concealed weapons restrictions, and even they were rare. New York and New Jersey had no concealed weapons restrictions until the 1890s. I will also have a section asking, in assessing text, history and tradition, with the assumption that the antiquity of restrictions sheds light on a constitutional guarantee, how widespread should the restrictions be before they are considered? James Madison actually wrote a fair amount on this, and his answer was quite narrow. A restriction should only count if it was passed despite the constitutional issue having been raised, and became so widespread that both sides agreed it was permissible.

[W]hat relevance do legislative enactments have to the interpretation of the expanse of the Second Amendment? I suggest that for pre-ratification enactments, relevance is determined by whether the ratifying generations of 1789-91 and 1866-68 would have had the limitation in mind when they chose to ratify, in the way they would have had limitations on defamation and obscenity in mind when they approved guarantees of "freedom of speech and of the press."

The relevance of a statutory limitation would thus be determined by its timeframe and the degree to which it was widely enacted. Timeframe would likely exclude measures that antedate the English Civil War, when arms confiscations first began and the duty to bear arms became seen as a right to bear arms. The requirement that a measure be sufficiently widespread that it would have been in the minds of the framing generation excludes measures that were limited or obscure.

[The applicant is] … greatly re-structuring [his article] in light of a discovery. One of the arguments being pressed in favor restricting arms carry is based on the 14th century Statute of Northampton, which forbade persons "going or riding armed." Other authors have uncovered many medieval royal commands restricting being armed or traveling while armed, and argued that these prove the English right to arms did not extend to carrying.

I suggest that the "text, history, and tradition" of the 2A only encompasses restrictions that were known to and binding on Framing-period Americans. Those, and only those, are relevant because they would help define what those Americans would have seen as within a right "to keep and bear arms."

What research indicates is: (1) original English sources-most statutes and almost all royal decrees-were unknown to early Americans, and not very available until the 1890s. The colonists were dependent on commentators, such as Coke and Blackstone. (2) The colonies were created under royal charters which recognized that they would be self-governing, and only asked that their laws conform to common law "as far as possible," and not be "repugnant" to it. It was recognized that the colonies would face issues not arising in England, and that the common law would not always be suited to their condition.

In practice, the colonial courts and legislatures did as they pleased, adopting common law when they thought it suited to American conditions and ignoring it otherwise. That they wouldn't have found the Statute of Northampton suitable is obvious: early legislatures commonly ordered colonists to carry arms when in the fields, when traveling, or when attending church.

In short, early Americans would have seen the Statute of Northampton and the medieval royal decrees as no more binding that the decrees of the Emperor of China, and these would have had no bearing upon what they saw as their right to arms.

 

In light of the Supreme Court's recent ruling in NYSRPA v. Bruen-which adopted text, history and tradition as its review standard in place of strict versus intermediate scrutiny, the applicant is writing a new article reviewing the Bruen holding. The applicant intends to submit that article to law reviews in late August and September.

Book, United States v. Miller.

The applicant informs that he has been contacted by Karen Miller, the great-granddaughter of Jack Miller, the defendant in the United States Supreme Court's 1939 United States v. Miller case. Karen Miller's grandmother-Jack Miller's daughter-gave her "about two cubic feet of documents and photographs," and discussed the case at length with her.

Ms. Miller wants to write a book on the subject, has asked the applicant to co-author the book, and has an academic press that is interested in publishing the book.

I have researched the case, and can provide the legal aspects. It strongly smells of a "set-up." Jack Miller tried to plead guilty, the judge talked him out of it (how often do you hear of that happening) and appointed an attorney. The judge then dismissed the case on Second Amendment grounds. But the judge turns out to have been a former Congressman, personal friend of FDR, who had on the floor said that the Second Amendment was no restriction on federal gun control, or even a complete federal ban on handguns. Under the rules at the time, the fact that he dismissed the indictment on constitutional grounds meant the government could appeal directly to the U.S. Supreme Court. But - and this is another anomaly - it did not. Perhaps someone slipped and missed the deadline. Then it re-indicted Miller, the judge dismissed a second time, and the government did appeal that. In the Supreme Court, Miller's attorney was informed he had 2 ½ weeks to brief the case and show up for oral argument; upon his responding that he hadn't even received the government's brief, the clerk informed him that it was late in the Term and an extension would not be given.

The resulting book (and perhaps articles and popular pieces) would draw attention to the Second Amendment, the human cost of gun restrictions, and would undermine what little support remains for Miller. It might reach unusual audiences (the Cherokee Nation has 300,000 enrolled members).

 

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