Mass Murder: American Unexceptionalism
Clayton E. Cramer*
Abstract
Is mass murder exceptionally American? If so, can America’s relatively laissez-faire gun control laws be the explanation? Would the courts finding increased regulation
based on this apparent exceptionalism be consistent with the Second Amendment’s
guarantee of a “right to keep and bear arms.”
Could a narrow reading of the Second Amendment qualify as “reasonable” or
“rational” because of the social costs of American exceptionalism?
I.
Brandeis Briefs and “Reasonableness”
Eventual U.S. Supreme Court Associate Justice Louis Brandeis
is often remembered for his seminal Brandeis Brief in
Muller v.
Oregon (1908)
,
in which legal argument was secondary to social science claims and arguments. His view was that “judges must decide on
statutory rather than on constitutional grounds.”
As part of that process, “In a democracy
social policy is made by legislatures, not by judges, and the Constitution must
be read as requiring the Court to exercise judicial restraint.”
In the absence of clear-cut conflict with the
Constitution, social science could inform judges on the “reasonableness” of a
statute to solve a specific social problem.
This article exists on the assumption that Brandeis briefs
will be submitted arguing that various types of firearms regulation can be
considered “reasonable” because the United States is exceptional with respect
to both firearms regulation and mass murder, and that there is some connection
therefore (a post hoc ergo propter hoc error). Such reasoning therefore might allow a
narrower reading of the Second Amendment’s protections with respect to
particular classes of arms in order to reduce a great social evil: mass
murder.
Under
existing precedents,
this would not be sufficient.
FCC v.
Beach Communications (1993) very clearly protects “fundamental
constitutional rights” from rational basis scrutiny.
DC v. Heller (2008) appears to have
recognized the Second Amendment as protecting a fundamental right.
Nonetheless, precedents are as Mary Poppins
described piecrust promises, “Easily made, easily broken.” This is especially of concern because
Heller is a very recent and highly
controversial precedent, one that appears to have been largely ignored by most
circuits, with little or no apparent interest by the Court in correcting them.
As appellate court judges move up the ladder,
this reluctance to apply strict scrutiny to a fundamental human right may well
produce a future Court willing to overturn
Heller,
or
narrow its protections with
respect to the categories of protected arms.
This article therefore
seeks to demonstrate that the United States is neither exceptional in its firearm mass murder problem, nor
exceptional in its mass murder problem for all types of weapons.
II.
The Claim of American Exceptionalism
In 2015, after a mass murder at a church in Charleston, South
Carolina President Barack Obama expressed the widely held belief: “At some
point, we as a country will have to reckon with the fact that this type of mass
violence does not happen in other advanced countries. It doesn't happen in
other places with this kind of frequency.”
Almost immediately, critics pointed out that
the first sentence was clearly incorrect: “Over the decade and a half studied,
the researchers found 23 incidents of mass shootings in the other 10 countries,
resulting in 200 dead and 231 wounded. In the United States over the same
period, there were 133 incidents that left 487 dead and 505 wounded.”
While the second sentence might be read as
correct if looking only at number of incidents instead of the more commonly
accepted measure of incidents per 100,000 population or dead per 100,000, even
then, the U.S. is only fourth on the list of mass murder incidents per 100,000
(0.15) compared to Finland (0.34), Norway (1.3), and Switzerland (1.7).
III.
Why Rates Matter
The first question that a naïve reader might ask, “Why do
population rates matter instead of raw counts of such incidents?” The reason is that many mass murders (as well
as the more ordinary murders) are committed by persons with severe mental
illness problems, whose actions are clearly a consequence of those problems.
Some of the recent and widely publicized
examples:
·
Russell Eugene Weston, Jr., after shooting two
U.S. Capitol police officers to death in 1999, explained his actions to a
court-appointed psychiatrist as an attempt to prevent the spread of a disease by
cannibals, including the two police officers.
Like many of the schizophrenics who become
local, national, or even international headlines, Weston had a long history of
mental illness well known to family, mental health workers, and police, but had
not been hospitalized for any great length of time.
·
An employee of the Postal Service, Jennifer
Sanmarco, was removed from her Goleta, California workplace in 2003 because she
was acting strangely, and placed on psychological disability. She moved to
Milan, New Mexico, where her neighbors described her as “crazy as a loon.” “A
Milan businessman said he sometimes had to pick her up and bring her inside
from the cold because she would kneel down and pray, as if in a trance, for
hours.” She returned to the Goleta mail sorting facility in January 2006—and
murdered five employees, before taking her own life.
·
In October of 2005, the family of David W.
Logsdon of Kansas City, Missouri, contacted police over Logsdon’s deteriorating
mental condition. (Logsdon had a history
of mental illness and alcoholism.) The police took Logsdon to a mental hospital
for treatment, concerned that he was suicidal. He was released six hours later. In April of 2007, Logsdon beat to death a
neighbor, and stole her late husband’s rifle. At a nearby shopping mall, he
shot and killed two people at random, wounding four others.
The remarkable and fortunate early arrival of
police, who shot Logsdon to death, prevented a larger massacre.
·
That same month, Seung-Hui Cho murdered
thirty-two students and faculty before taking his own life. That something was not right was apparent to
at least some of his professors, and he was briefly hospitalized after a
stalking incident. The special judge who determined whether Seung-Hui should be
involuntarily committed concluded that he was a danger to himself. The next day, Seung-Hui left the hospital,
and soon he was back on campus, living in a world of paranoid schizophrenia. Because he was not
involuntarily committed to a hospital, Seung-Hui’s name did not
appear on the FBI’s firearms background check list, and he was able to legally
purchase handguns that he used in the largest gun mass murder in U.S. history.
·
In April 2009, Jiverly Wong murdered thirteen
people at a Binghamton, New York immigrant-assistance center. Letters by Wong
to local news media demonstrated what “Dr. Vatsal Thakkar, assistant professor
of psychiatry at NYU’s Langone Medical Center” described as “major mental
illness, quite possibly paranoid schizophrenia.”
·
In January 2011, Jared Lee Loughner opened fire
on a crowd at a town hall meeting of Rep. Gabrielle Giffords and her
constituents, killing six and injuring thirteen. Loughner had a history of police contacts
involving death threats, and was expelled from college for bizarre actions that
clearly established that he was mentally ill. In spite of his frightening behavior, he was
never hospitalized, even for observation – until he made himself nationally
famous.
A series of disturbing web postings and
YouTube videos also confirmed that Loughner’s grasp on reality was severely
impaired.
Court-ordered psychiatric evaluations
concluded that Loughner was suffering from schizophrenia, and was incompetent
to stand trial.
·
Certainly the most disturbing of these recent
mass murders was in Newtown, Connecticut.
Adam Lanza had some sort of psychiatric disorder, but his childhood
diagnosis of Asperger’s Syndrome is not typically associated with mass murder.
Some reports describe Lanza as suffering from
sensory integration disorder (SID), where sensory inputs overwhelm the brain.
There is sizable overlap between the
description of SID and the sensory problems that appear to be part of
schizophrenia,
enough to wonder if Lanza
was edging into schizophrenia, or if Lanza’s psychiatrist was reluctant to give
this devastating diagnosis until he was certain. Early reports indicate that Lanza’s mother
was attempting to have him hospitalized, and his discovery of this may have
provoked the crime.
The mental illness often present in these tragedies,
schizophrenia, is a genetic disease affecting about 1% of the population.
A
nation of one million people will therefore have ten times more schizophrenics
than a nation of 100,000. A measure
relative to population, as with most measures of criminal behavior, is clearly
the only sensible evaluative method.
Obviously, not all mass murders fit into the mental illness
category. Some are acts of
terrorism. The recent mass murder in Las
Vegas seems to be a Black Swan crime: a multimillionaire who engaged in
meticulous planning with devastating loss of life (although lower than at least
four U.S. mass murders in the last three decades).
IV.
Non-Firearm Mass Murders
For many people, it is a surprise to find out that there are
many mass murders committed with weapons other than firearms.
USA
Today gathered data on mass murders (“defined [as] killing four or more
victims”) committed in the U.S. from 2006 through 2010. “A third of mass
killings didn't involve guns at all. In 15 incidents, the victims died in a
fire. In 20 others, the killer used a knife or a blunt object.”
Other countries, with more restrictive gun control laws, also
have non-firearm mass murders, such as the five stabbed to death in Calgary,
Alberta in 2013.
Unsurprisingly, Matthew de Grood was found
not criminally responsible because of “a mental disorder,”
Australia is sometimes given as an example of the
effectiveness of gun control for preventing mass murders such as the 1996 Port
Bryant mass murder.
But Australia still has mass murders, such as
the mass stabbing that killed eight siblings in Queensland, Australia,
and blunt object mass murders such as one used to murder five people in Sydney
in 2009.
Mass murders by arson are also a problem in
such countries, as they are in the U.S.
Childers, Queensland’s Palace Backpackers Hostel was intentionally
burned in 2000, killing 15.
The 2011 Quakers Hill Nursing Home fire
killed eleven, set by a nurse after police questioned him about drug abuse.
V.
Firearms Mass Murders Outside the U.S.
Christian Dornier, 31, under treatment for “nervous
depression,” murdered fourteen people in three villages in eastern France.
He was later found innocent by reason of
insanity.
Eric Borel, 16, murdered his family with a
hammer and a baseball bat, and then went on a shooting rampage in the nearby
town of Cuers, France in September, 1995.
He killed twelve in total beside himself.
In March 2002, Richard Durn murdered eight
local city officials and wounded nineteen others in Nanterre, a suburb of
Paris. Durn had a master’s degree in
political science and “a long history of psychological problems.” After his arrest, he was described as “calm
but largely incoherent,” but then leaped to his death through a window. He was chronically unemployed.
In April 2002, 19-year old Robert Steinhaeuser went into a
school from which he had been expelled in Erfurt, Germany and murdered eighteen
people before killing himself.
In April of
2011, Wellington Menezes de Oliveira went into a school in Rio De Janeiro,
Brazil, murdering twelve children, before killing himself. His suicide note was unclear, but a police
officer described de Oliveira as a “hallucinating person.”
Later the same month, Tristan van der Vlis
went into a shopping mall in Alphen aan der Rijn, the Netherlands, and shot six
people to death. The Netherlands has
very strict gun licensing laws; nonetheless van der Vlis had a gun license in
spite of a history of brief mental illness hospitalization and suicide
attempts.
III. Summary
As the preceding sections demonstrate, there is nothing
exceptionally American about U.S. mass murder or even firearms mass
murder. While our rates of firearms mass
murder are higher than most other developed nations, we are not at the top of
the list. Including non-firearms mass
murders might move us further down the list.
FCC v. Beach Communications, 508 U.S. 307, 313 (1993)
(“In areas of social and economic policy, a statutory classification that
neither proceeds along suspect lines nor infringes fundamental constitutional
rights must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for
the classification.”); For an explanation of the continuing debate about the
limits of rational basis scrutiny, see Dandridge v. Williams, 397 U.S. 471, 520
(1970) (Douglas, J., diss.) (“The
extremes to which the Court has gone in dreaming up rational bases for state
regulation in that area may in many instances be ascribed to a healthy
revulsion from the Court's earlier excesses in using the Constitution to
protect interests that have more than enough power to protect themselves in the
legislative halls.”)
.Kevin
Liptak and Brenna Williams,
Watch Obama
React to Mass U.S. Shootings, CNN, Jun. 12, 2016.
Keeley Herring and Louis Jacobson,
Is Barack Obama Correct That
Mass Killings Don't Happen in Other Countries? ,
Politifact, Jun. 11, 2015.
See Clayton E. Cramer,
Mental
Illness and the Second Amendment, 46 Conn. L.R. 4:1301, 1310-1314
(2014) for a list of recent high-profile mass murders clearly caused by severe
mental illness;
Id., at 1303-1310 collecting
studies on mental illness and murder correlations...
Bill Miller
, Capitol Shooter’s Mind-Set Detailed, Apr. 23,
1999.
See Clayton Cramer,
Madness,
Deinstitutionalization & Murder, 13:1
(Mar. 2012) for a detailed list of such murders.
Martin Kasindorf,
Woman Kills 5, Self at Postal Plant, Feb. 1, 2006;
Jim Maniaci,
“Crazy as a Loon,
”
Feb. 2, 2006.
Maria Sudekum Fisher,
Mall Shooter Used Dead Woman’s Home While She Was
Still Inside, , May 3, 2007.
Maria Sudekum Fisher,
Mall Gunman Planned to “Cause Havoc,
” May
1, 2007.
Close the Loophole Cho Sneaked Through,
Apr. 25, 2007; Dr. Michael Welner,
Cho Likely Schizophrenic, Evidence
Suggests, ABC News, Apr. 17, 2007.
Austin Fenner, Kirsten Fleming & Dan Mangan,
“I Am Shooting—Have a Nice
Day,
”
Apr. 7, 2009.
Tim Steller,
Man Linked to Giffords Shooting Rampage Called “Very Disturbed,
”
Jan.
8, 2011 (Loughner had previously made death threats and been contacted by
police);
College Asked ATF About Loughner
Before Rampage, ,
May 20, 2011 (September 15, 2013)
http://www.cbsnews.com/2100-201_162-20064455.html
(behavior described by school administrators as “bizarre” and “intimidating”;
laughing and ranting inappropriately; ordered by the college to get a mental
health evaluation before returning to campus).
David A. Fahrenthold and Clarence Williams,
Tucson
Shooting Suspect Jared Loughner Appears To Have Posted Bizarre Messages, Jan. 9, 2011
(September 15, 2013)
http://www.washingtonpost.com/wp-dyn/content/article/2011/01/08/AR2011010803961.html
(Loughner left “a series of postings and homemade videos that laid out a
fervent, though largely incoherent, set of political views.” One quote from Loughner: “I can’t trust the
current government because of the ratifications: the government is implying
mind control and brainwash on the people by controlling grammar.”) Some of Loughner videos are still available:
(
http://www.youtube.com/watch?v=nHoaZaLbqB4,
Sep. 21, 2013).
Craig Harris & Michael Kiefer,
Judge Finds Jared Loughner Incompetent
to Stand Trial,
May 25, 2011.
Daniel C. Murrie, Janet I. Warren, Marianne Kristiansson, and Park E. Dietz,
Asperger’s Syndrome in Forensic Settings,
1
(2002) (reviews existing studies which
argue whether Asperger’s patients are disproportionately violent, but points to
one study that suggests such violence is not premeditated); Barbara G. Haskins
and J. Arturo Silva,
Asperger’s Disorder
and Criminal Behavior: Forensic-Psychiatric Considerations, 34 the debate about disproportionate violence remained
active, but again argues that violence by Asperger’s patients was the result of
inability to read social cues and narrowly focused interests).
Peter Falkai, Andrea Schmitt, and Tyrone D. Cannon,
Pathophysiology of Schizophrenia, 42, in (Wolfgang Gaebel, ed., 2011) (discussing
dysfunction “of the cortico-cerebellar-thalamic-cortical neuronal circuit” and
its role in filtering sensory information);
Anthony J. Rissling and Gregory A. Light,
Neurophysical Measures of Sensory Registration, Stimulus
Discrimination, and Selection in Schizophrenia Patients 284-6, in (Neal R. Swerdlow, ed., 2010)
(discussing the relationship between sensory input processing and
schizophrenia).
Jana Winter,
Fear Of Being Committed May
Have Caused Connecticut Gunman To Snap, December 18, 2012 (September 15, 2013),
http://www.foxnews.com/us/2012/12/18/fear-being-committed-may-have-caused-connecticut-madman-to-snap/
(An acquaintance of the family reported that Adam Lanza had found out about his
mother’s “petitioning the court for conservatorship and (her) plans to have him
committed” and that this set him off; “[a] senior law enforcement official
involved in the investigation” confirmed that Lanza’s anger over these plans
was being looked at “as a possible motive.”)
International Schizophrenia Consortium,
Common polygenic variation contributes to risk of
schizophrenia and bipolar disorder, 460
Nature 748-52
(discusses research demonstrating the location of the genes responsible for
schizophrenia.)
September 11th Terror
Attacks Fast Facts, CNN, Aug. 24, 2017
(2977 dead); Joan Mower, Associated Press, Dupont Plaza Fire Survivors Still Trying to Come to
Terms With Tragedy, , Mar. 8, 1987 (96 dead); Larry Celona, Stuart
Marques, Eddie Borges, et al.,
Fire kills 87 people at the
Happy Land Social Club in the Bronx in 1990, , Mar. 17, 2015 (87 dead); Jayson Blair,
A Nation Challenged: Oklahoma
City Bombing, , Mar. 25, 2002 (168 dead).
Meaghan Hoyer and Brad Heath,
Mass Killings Occur in USA Once Every Two Weeks,
Jason Van Rassel,
Police
officer's son charged in city's worst mass murder, Calgary [Alberta]
Herald, Apr. 17, 2014.
Matthew de Grood found
not criminally responsible for stabbing five people to death at Calgary party,
[Canada] , May 26, 2016.
Will Oremus,
How Many
Shootings Will It Take for America to Control Its Guns?, , Dec. 16, 2012.
Jonathan Pearlman, Eight Children Murdered In Mass Stabbing In Australia, [U.K.], Dec. 19, 2014.
Jamelle Wells, Robert Xie Trial: Lin Family 'Murdered With Hammer
Bought From $2 Shop, ABC [Australia], May 12, 2014.
A Decade On, Childers
Remembers Hostel Fire Tragedy,
[Australia] ,
Jun. 23, 2010.
Candace Sutton,
Man Who
Murdered 11 People in Nursing Home Fire 'Frothed At The Mouth' From Drugs And
'Put Nails In Tyres And Poured Paint' Over Boss's Car, Inquest Hears, [U.K.]
Daily Mail, Sep. 8, 2014.
“Gunman’s Rampage in France Leaves 14 Dead,”
Los Angeles Times, Jul. 13,
1989.
David Lester,
Mass Murder: The Scourge of the 21st Century
(Hauppage, N.Y.: Nova Science Publishers, 2004), 106.
“Teen-Age Gunman Kills Himself and 12 Others in France,”
New York Times, Sep.
25, 1995
James Graff, “Politics Under the Gun,”
Time, Mar. 31, 2002.
“Brazil School Shooting: Twelfth Child Dies,”
SkyNews, Apr., 8, 2011.
“Safety council to investigate gun laws,”
DutchNews.nl, Apr. 12, 2011,
http://www.dutchnews.nl/news/archives/2011/04/safety_council_to_investigate.php,
last accessed May 21, 2011; “Schutter was al eerder suicidaal,”
NOS Nieuws. Apr. 10, 2011, http://nos.nl/artikel/232127-schutter-was-al-eerder-suicidaal.html, last accessed May 21, 2011.
