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Supported Research

RESEARCH AND WRITING PROJECTS.

Mass Murder.

The applicant is writing a new book tentatively called Mass Murderers: Who? How? Why? The gun prohibitionists are inaccurately blaming guns for the mass murders. The 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 to show that there is no correlation between access to firearms and mass murders.

Many people are unaware that almost ΒΌ 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).

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

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 the 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 been answering media queries concerning the relationship between mass murder and mental illness. The applicant gave an interview with the Wall Street Journal reporter in late 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 will address the issue of mass murder.

The research and writing for the book is well under way: the 17th and 18th Centuries portions have been finished and he is researching and writing about the 19th, 20th and 21st Centuries now.

[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.

The applicant is verifying the 1880's and 1890's data and is compiling more recent data, including a list of all mass murders (not just gun mass murders) for the period of 2006-10. The applicant expects to complete this project during the summer of 2019. To date, he has identified 391 mass murders, with 6089 dead. "Where a single weapon type was used: firearms of all types are a small part of all deaths."

RESEARCH AND WRITING PROJECTS.

The applicant participated in a Second Amendment symposium relating to District of Columbia v. Heller, at Southern Illinois University on April 19, 2018. The applicant addressed two main themes: (1) the legal chaos which has resulted from numerous circuit splits and the Supreme Court's repeated denials of certiorari; and (2) the need to apply heightened standards of review.

The applicant's submitted materials have now been published in the Southern Illinois University Law Review shortly. The applicant's article, entitled Standards Of Review, The Second Amendment, and Doctrinal Chaos, addresses the Supreme Court cases, and

[T]he serious circuit splits that have occurred in two areas: (1) Standard of review, where courts range from imposing a high level of scrutiny and demanding actual proof that a law works, to applying rational basis under another name, and upholding laws based on speculation. (2) When Heller referred to 'long standing' [laws] surviving legal challenges, was it predicting that these laws would probably pass scrutiny, or created categorical exclusions where the Second Amendment has no application at all? The article will close with a call for a high level of scrutiny, based on the proclivity of some legislatures to pass gun laws on a whim, or to punish firearm owners.

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The article has two thrusts: (1) the Court really has to grant cert. Lower courts have split on every aspect of Heller, and the result is legal chaos. (2) In particular they have fractured badly on standard of review, all the way from strict scrutiny to rational basis (that Circuit holds that Heller's preclusion of rational basis only applies to its narrow holding: a complete prohibition gets elevated review, anything less gets rational basis).

The applicant revised the article after Brett Kavanaugh was nominated for the Supreme Court, as Judge Kavanaugh takes a different approach to standards of review. "Judge Kavanaugh holds that there is no standard of review applicable: review should be based on "text, history, and tradition."

The article concludes that the "law of the Second Amendment is in chaos." Among the unsettled issues are:

1. Whether there is a one-stage test or a two-stage test, i.e. whether the Heller reassurance regarding "long standing" laws marks a threshold screening or not;

2. Whether the means-end assessment has one or two components, one for core rights and the other for lesser aspects of the right;

3. If so, whether the "core right" is limited to defense in the home;

4. Whether the standard of review is strict scrutiny, almost-strict scrutiny, intermediate review, or rational basis;

5. If intermediate review, whether it is "almost strict scrutiny," or rational basis by another name; and

6. Whether as-applied challenges are allowed or forbidden.

The article argues that the Supreme Court must take cases to settle circuit splits on standards of review and determine whether as-applied challenges are allowable. The article argues for application of strict scrutiny or something very close to it, and against the two-level standard of review applied by the Second Circuit in New York State Rifle and Pistol Association, et al. v. City of New York, et al.

The applicant has completed research for his next law review article, has completed writing most of it, and anticipates finishing it in August 2019. "The article has two thrusts: (1) the [Second Amendment]'s militia clause and its right to arms clause have different histories and constituencies, so that one cannot be a limitation on the other, and (2) in any event, the National Guard is not the militia of the Constitution. In its present form, it was actually organized in the 1920s under the Army and not the Militia Clause, specifically to get around restrictions on the use of the militia.

The applicant was invited to write for and present at a January 18, 2019 Second Amendment Symposium at Lincoln Memorial Law School in Knoxville, Tennessee.

Recently, the applicant's article, "The Janus-Faced Second Amendment: Looking Backwards to the Renaissance and Forward to the Enlightenment," was accepted by the Georgetown Journal of Law and Public Policy.