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Comprehensive List of Court Cases Citing My Works

My Law Review & Other Scholarly Journal Articles

As time permits, some of these articles will appear in full here.

"Ethical Problems of Mass Murder Coverage in the Mass Media," Journal of Mass Media Ethics 9:1 [Winter, 1993-94] 26-42.

An examination of the way in which statistically disproportionate coverage of mass murders by Newsweek and Time encouraged at least one copycat crime, and may have caused others. First Place, Association for Education in Journalism and Mass Communication Ethics Prize, 1993.

"The Racist Roots of Gun Control", Kansas Journal of Law & Public Policy 4:2 [Winter, 1995] 17-25.

A study of the racist origins of American gun control law, and its public policy implications for today.

"`Shall Issue': The New Wave of Concealed Handgun Permit Laws", Tennessee Law Review 62:3 [Spring, 1995] 679-757.

An examination of how concealed handgun permit laws have been liberalized in a number of American states, and what has happened to murder rates after those laws were changed. Co-written with David Kopel. (This version doesn't include the graphs that appear in the print version, and may have a few other minor differences.)

"A Tale of Three Cities: The Right to Bear Arms in State Supreme Courts", Temple Law Review 68:3 [Fall, 1995] 1178-1241.

Examines the legal theories used by Oregon, Ohio, and Colorado courts when assault weapon regulations have been challenged under state constitutional arms provisions. Co-written with David Kopel and Scott Hattrup.

“Confiscating Guns From America’s Past”, Ideas on Liberty, 51:1 [January, 2001], 23-27.  Examines the serious accuracy problems with Michael A. Bellesiles’s Arming America: The Origins of a National Gun Culture (New York: Alfred A. Knopf, 2000).

"Why Footnotes Matter: Checking Arming America's Claims, Plagiary 1(11):1-31 [2006]

Michael A. Bellesiles’s Arming America: The Origins of a National Gun Culture (New York: Alfred A. Knopf, Inc., 2000) enjoyed nearly universal critical acclaim and received a Bancroft Prize in History in 2001. Criticism of its accuracy (initially almost entirely from outside the academic historian community) eventually led to an unprecedented revocation of the Bancroft Prize, and Bellesiles’s resignation from a tenured position at Emory University, largely based on problems with Arming America’s use of probate inventories. Arming America’s problems were not confined to irreproducible probate inventory statistics, but appeared throughout the book. This paper gives examples of primary sources falsified to support Bellesiles’s thesis, and sources cited to prove a claim when all the cited sources either directly contradict the claim, or are irrelevant to the claim. The sheer volume of these errors—-and their consistent direction—-would seem to preclude honest error.

"What Did "Bear Arms" Mean in the Second Amendment?" Georgetown Journal of Law and Public Policy, 6:2 [2008]. Co-authored with Joseph Edward Olson.

Among the many heated controversies concerning the Second Amendment is the correct meaning of the phrase keep and bear arms. Those who argue that the original meaning of the Second Amendment was only to protect a collective right, either of the states to maintain militias, or perhaps of citizens to jointly form state-controlled militias, assert that bear arms refers exclusively or at least overwhelmingly, to the military carrying of weapons. Some have claimed that even keep arms was exclusively military in its meaning. While one might challenge the overly narrow focus on bear arms instead of the entire phrase keep and bear arms, those arguing for a collective right have thrown down the gauntlet by making this strong claim about just two words. This paper demonstrates that the Founding Generation did not understand bear arms as limited to military or collective militia duty but saw it as merely one way of expressing the concept of possession (as a modern speaker might say carry a gun).

"Pistols, Crime, and Public Safety in Early America." Willamette Law Review, 44[2008]. Co-authored with Joseph Edward Olson.

There is currently a rather vigorous debate under way about the meaning of the Second Amendment. What arms does it protect? The District of Columbia, in its attempt to defend its 1976 gun control law, has argued that the widespread possession of handguns represent an especially serious public safety hazard, and that even if arguendo, the Second Amendment protects an individual right, it would not extend to handguns, which it characterizes as uniquely dangerous weapons that present unique dangers to innocent persons. This paper examines what the history of pistols in early America tells us about what was likely the Framers' original intent in protecting the right of the people to keep and bear arms with no apparent limitations concerning handguns and concludes that, unlike radio or nuclear power, repeating firearms (of some sort) were not only foreseeable but eagerly expected.

"Gun Control: Political Fears Trump Crime Control," Maine Law Review, 61:1[2009] 57-81. Co-authored with Joseph Edward Olson.

A detailed examination of the discrepancy between the stated purpose of the British Firearms Act of 1920--crime control--and what the declassified Cabinet papers and diaries of participants show was the real concern: fear of Bolshevik revolution.

Co-authored with Don B. Kates, "Second Amendment Limitations and Criminological Considerations," 61 Hastings Law Journal 1339-70 (2009).

An examination of the limitations of the rights protected by the Second Amendment with respect to criminological concerns and public safety.

Co-authored with David B. Kopel, "The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich," 19 Widener Law Journal 277-320 [2010] (forthcoming)

Checking the footnotes in Nathan Kozuskanich's law review articles concerning the Pennsylvania Constitution's right to keep and bear arms provision yields some startling errors.

Co-authored with Nicholas J. Johnson and George A. Mocsary, "'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified," 17 George Mason Law Review 823-862 (2010).

What was the public understanding of the meaning of the Second Amendment when the Fourteenth Amendment was ratified?

Co-authored with David B. Kopel, "State Court Standards of Review for the Right to Keep and Bear Arms," 50 Santa Clara Law Review 1-110 (2010).

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

Co-authored with David B. Kopel and Jospeh Olson, "Knives and the Second Amendment," University of Michigan Journal of Legal Reform, 47:1 167-215 (2013).

Examines knives as Second Amendment protected "arms," and the implications of recent U.S. Supreme Court decisions for current federal, state, and local regulatory measures.

Court Cases Citing My Work

U.S. Supreme Court

McDonald v. Chicago, 130 S.Ct. 3020 (2010) at 3043 and n. 21, 25 in Justice Alioto's majority opinion and at 3132 in Justice Breyer's dissent

D.C. v. Heller, 128 S.Ct. 2783 (2008) at 2795

Federal Appellate Courts

National Rifle Association, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives (5th Cir. 2013) at notes 6, 20, 22, 25.

Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), at note 11.

U.S. v. Chester, 628 F.3d 673 (4th Cir. 2010)

U.S. v. Yancey, 621 F.3d 681 (7th Cir. 2010)

U.S. v. Skoien, 587 F.3d 803 (7th Cir. 2009)

Federal District Courts

Powell v. Tompkins, Civil Action No. 12-10744-WGY (D.Mass. 2013)

Moody v. ARC of Howard County, Inc., Civil No. JKB-09-3228, (D.Md. 2011) at note 4.

State Supreme Courts

State v. Sieyes, 225 P.3d 995 (Wash. 2010), at para. 19

Senna v. Florimont, 958 A.2d 427 (N.J. 2008)at note 4

Mosby v. Devine, 851 A.2d 1031 (R.I. 2004) at 1055-6, 1059, 1061, 1065, 1069, 1072

Pagel v. Franscell, 57 P.3d 1226 (Wyo. 2002)