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).
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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 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 of 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.
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.
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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.
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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.
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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.
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The mass murder at Cleveland School in 1989 that started California’s legislative focus on LCMs involved a mentally ill drifter with a history of involuntary commitment and a spotty record of outpatient treatment. As the California Dept. of Justice’s official report observed:
In an ideal world, ample resources would have been available to detect his problems, identify them as potentially dangerous and likely to result in his life being uselessly wasted, and to provide for a type of intervention with a reasonable prospect of making a difference. However, in a world in which government spending has to recognize realistic limits set by the public, such resources will never be plentifully available.
The applicant most recently informed that he is now finishing his research up to the year 1964. His research assistant is currently working on 1994. Another research assistant is “adding in sex and age of mass murderers where that information is available … .”
While firearms continue to be an increasingly common method, blunt objects, knives, and drowning remain popular. … 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.
I have filed expert declarations based on this data in Oregon Firearms Federation, Inc. v. Kotek (D.Ore. 2022); Rupp v. Bonta (C.D.Cal. 2022), Bevis v. Naperville (N.D. 2023), and Highland Park. ... I am also working with the challenge to the Illinois Assault Weapons Ban.
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I have been producing expert declarations for literally dozens of challenges to gun laws across the nation. ... I have used the research done for this project in many of those declarations ...; the research on this project simplified my testimony in various assault weapon cases
The applicant’s plan is to place the relational database and text in the USA Today mass murder database and then to write a book analyzing that data.
Bear Arms.
The applicant is writing a law review article about Corpus Linguistics in the Second Amendment context.
One of the issues that arose in briefing Bruen is the anti-2A side’s use of a relatively new computer tool, various versions of Corpus Linguistics. Those databases incorporate enormous information about the use of language in the framing period and thereafter – books, newspaper articles, private letters. Several of the other side’s amicus briefs focused upon using Corpus Linguistics searches to demonstrate that the phrase “bear arms” was almost always used to refer to military or militia carrying, not to civilian use for self-defense. Our response came in an amicus brief that essentially argued Corpus Linguistics was incomplete.
The applicant’s article will provide a more helpful and “simpler and more definite answer.”
… Whatever the words’ common usage, in the framing period and thereafter “bear arms,” when used in constitutional text was a term of art that encompassed carrying for individual self-defense. This can be seen in state constitutions (of which there were many) that guaranteed a right to “bear arms” (not keep and bear) and which also expressed a purpose, such as “for defense of themselves and the state.” Every one of these constitutions that I have found associated “bear arms” with individual self-defense.
The applicant informs that he has “completed this article and submitted it to a dozen law reviews. It demonstrates that, over 1776-1868, state constitutions used “bear arms” as a term of art that including personal use in self-defense. This is in answer to arguments that “bear arms” was commonly used to refer to military carry and not civilian use.”
This article demonstrates very, very, clearly that in state constitutions over 1776-1868, “bear arms” was a term of art that covered civilian carrying of arms in self-defense. ... [E]veryone knew they covered civilian carrying of arms.
Recently, the applicant informed:
I have completed this article and am circulating it to law reviews. It demonstrates that, over 1776-1868, state constitutions used “bear arms” as a term of art that including personal use in self-defense. This is in answer to arguments that “bear arms” was commonly used to refer to military carry and not civilian use.
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:
Thus far I have written chapters on:
What remains for completion is chapters on:
The end product will be a convenient book that will instruct attorneys on every aspect of FOPA, and how to use that statute for its intended purpose: the legal defense of firearm owners. If an attorney takes on an FFL revocation, he can just turn to this book, and the same for firearms seizures, or anything else.
The applicant most recently informs that he has completed all but the final two chapters.
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 membersastotheinternaldeliberationsofthosewhoopposetherighttoarms.”
The National Archives and Records Administration is processing the FOIA to ensure that none of the documents are privileged or classified and that they “have identified approximately 1,324 email messages, 159 electronic files, and 1,550 pages of potentially responsive records that must be processed in order to respond to your request.”
The applicant informs that the National Archives have responded, informing that they have located 1,324 emails, 159 electronic files, and 1,550 pages of hard copy, and that they will comply with the statute. The National Archives predict that they will make the documents available to the applicant in the summer or fall of 2024.
History of Arms Restrictions.
The applicant wishes to research the history of arms restrictions.
Bruen of course made “text, history, and tradition” the test for Second Amendment challenges, placing history rather than criminology at the forefront. The other side’s response has been to search for early arms restrictions; they recently convinced a court to uphold restrictions on rifle purchase by 18-21 year olds by finding some (late) Reconstruction-era restrictions of that type. …
I propose to research the history of arms restrictions, with an eye to showing how little history almost all have. Almost none date to 1791, or 1868, or anywhere close to either date. For example, permits to carry openly did not begin to appear until the 1920s, and even today are limited to a very few states. Even permits for concealed carry were unknown until the 1890s. Restrictions on long arms were virtually non-existent until the mid-1960s. These and many other restrictions should clearly fail the Bruen standard.
The applicant’s research will include related issues, such as “to what extent and by what standards can a court consider post-ratification history?”
Research and Writing Projects.
The applicant is working on a number of research and writing projects, including the following:
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.
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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.
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[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.
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[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 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 an article reviewing the Bruen holding.
In Bruen, the dissent largely focused upon English statutes and royal proclamations, to supposedly demonstrate that the common law right to arms was restricted. The dissent’s reasoning was that Americans of the ratifying generation would have known of these restrictions and thus have seen the right to arms as limited by them.
But my manuscript demonstrates that these arms restrictions (1) never applied in the colonies and (2) would not have even been known to Americans of 1791 (Tudor-era royal proclamations, for example, were not compiled and printed until the early 20th century). They couldn’t have been part of the ratifying generation’s understanding.
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[M]y article on Bruen has been accepted by Wyoming Law Review, for publication in 2023. I also posted the article to Social Science Research Network, a database for not-yet-published academic works. SSRN assesses the popularity of articles on a weekly basis, and this paper has been in the top ten downloads for Legal History for the last three months. As SSRN posts over 140,000 papers monthly, this is something of a distinction. This paper demonstrates that the Bruen dissenters were wrong to cite English restrictions on the right to arms as if they reflected American understandings of that right. The English restrictions never applied to the colonies, and were unknown to 1791 Americans anyway.
The applicant has submitted his manuscript to ten law reviews for publication. Most recently, the applicant informs that his article has been accepted by Charleston Law Review and will be published in the spring of 2024.
The article begins with the premise that English common law restrictions on a right are relevant insofar as they indicate what the Framers would have seen as limits of that right (in the case of the First Amendment, obscenity, fighting words, defamation, etc.).
The article then demonstrates that the English common law restrictions on the right to arms (1) never applied in the colonies and (2) would not have even been known or knowable to Americans of 1791. Thus the restrictions would not have played a role in the American understanding of the right to arms.
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.
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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).
The applicant met co-author Karen Miller coauthor (great-granddaughter of Jack Miller) and exchanged relevant documents with her.
The materials demonstrate that Miller wasn’t a bank robber, and show many aspects of his personal life (e.g., that he was a WWI vet and the Red Cross helped him and used his family in a fundraising ad. He also ran a restaurant, and family lore says Will Rogers and Pretty Boy Floyd would stop in for its peach cobbler).
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