The 9th Anniversary of the Las Vegas Mass Shooting – The Supreme Court Cannot and Must Not Ignore It

Here we are again, another year has passed and we pause sadly to remember and contemplate the meaning and lessons of mass shootings, in this case the October 1, 2017 killing of 58 and wounding of hundreds in ten minutes in Las Vegas by a legal gun owner with 24 AR style rifles and 6,000 rounds of ammunition.  For the innocent victims, their families and friends, the scars will never heal.

That is the just human dimension of that enormous tragedy, one that dwarfed the horror of similar events in Orlando, Uvalde, El Paso, Virginia Tech, Sandy Hook, Boulder, Sutherland Springs, Parkland High School, Buffalo, and the list goes on and on. 

But there is also the “legal” or “constitutional” dimension to these many deaths, woundings, mourning, and psychological scars on the people directly affected and on the country as a whole where the fear of gun violence never recedes.  

The central issue in this legal dimension focuses on the instrument of death – the AR15 and similar weapons -- involved in Las Vegas and in so many mass killings and in the fearful and cautious police responses as Uvalde so tragically made clear. 

Our esteemed Supreme Court is currently considering two cases involved AR15 style weapons and is focusing its deliberations on whether the AR15 is a weapon “in common use” and thus not subject to restrictions by individual states.  The issue comes down to that characterization because it follows on the questionable logic of previous Supreme Court cases dating from the 2008 ruling, written by Justice Scalia, in Heller v District of Columbia, where Scalia and a 5-4 majority of Justices decided that gun ownership was an individual right and DC could not restrict residents from having hand guns in the home for “self-defense”.   

In subsequent cases (NYRPA v Bruen (2022), Garland v Cargill (2024), Wolford v Lopez (2026), the Court built further questionable jurisprudence on the basis of Heller, setting the stage and opening the door for backing the AR15 for unrestrained use and availability in our gun violence-riven USA. 

The key issue in the AR15 cases is the meaning and significance of the word “arms” in the Second Amendment.  In Heller, Scalia was as dismissive of the word “arms” as he was of the amendment’s militia clause, which he asserted had no substantive relevance to the amendment. 

With regard to “arms”, Scalia wrote: “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. …”  

Scalia argues that “we” do not interpret constitutional rights that way, disingenuously implying that “we” speaks authoritatively for the country and for the national constitutional law community.  However, since he is writing for the 5-4 majority, the “we” is simply those five justices, a critical but long ignored distinction.  

The Supreme Court’s tenuous arguments in subsequent cases have created the framework for the AR15 cases, namely that the operative test is whether the weapon “is in common use” with the related judgment from Cargill that bump stocks do not make an AR15 a machine gun as technically defined by the 1934 National Firearms Act. 

So that’s where we are, or many people believe or claim. 

But simple logic and a basic understanding of history and the development of individual weaponry exposes the incredible problems with Scalia’s reasoning and his conclusion, subsequently embraced by succeeding Court rulings. 

Think about it for a minute, and think of what “arms” may actually exist 50 or 100 years from now, since Scalia and supporting justices are arguing conceptually regarding “arms”. 

Just as the Founders, writing, debating and deciding in the first two Congresses in 1789-1792 to enact the Bill of Rights (formally on December 15, 1791) and the Militia Act (passed and signed May 8, 1792), which set out the details of the “well regulated militia” as stated in the Second Amendment, had no concept of how “arms” would evolve in succeeding years, decades or centuries, Justice Scalia and today’s justices have no clue as what technological advances lie ahead, whether next year, next decade or through the end of the century and beyond. 

Let your imagination run wild, trying to advance firearm/individual “arms” technology from today’s base.  For the Founders in the Militia Act, that clearly meant single shot muskets and 24 cartridges.  Seven round repeating rifles made their appearance some 70 plus years and three generations later and high-powered military grade weapons with 100 round magazines 200 years later.  Today, 28 million AR15s are in circulation in the U.S. because of these past SCOTUS decisions and aggressive marketing by gun manufacturers, basically creating “new facts” on the ground in the country. 

So, imagine the future from today’s base line, where as yet unborn weapons inventors might be able to produce even higher rates of fire for AR15s (the Las Vegas shooter achieved nine rounds a second) or even individual chem-bio weapons capable of killing wide swaths of people in a single action.  Or, perhaps, there will be some type of electromagnetic pulse weapon that impacts humans directly and wreaks havoc in so doing; think “Havana syndrome” and the poorly understood (as yet) effect of that phenomenon. 

Or let’s launch into the distant unknown, the lasers and ray guns of Buck Rogers, Star Wars and who knows what other sci-fi weapon scenarios that might become possible with time. 

No, today’s Supreme Court faces the same issue as did the Founders in writing the Second Amendment and approving the 1792 Militia Act.  Clearly, the Founders discussed and contemplated on the basis of their 1789-1792 experience and knowledge.  The Militia Act could not be clearer or more specific, and it certainly stands solidly as the operational extension of the 27 words of the Second Amendment, both with respect to the militia clause and the reference to “arms”. 

What is particularly disingenuous on the part of Scalia in 2008 is that he claimed to be an “originalist” and “textualist”, keenly relying on and adhering to the stated text of the Constitution and its amendments.  But Heller and subsequent Second Amendment rulings could not be further from “originalism”, no matter how the individual justices – Thomas and Alito in particular today – try to recast the constitution.  Justices Alito and Kavanaugh openly concede this in their own briefs in Wolford (Alito) and Rahimi (Kavanaugh). 

Kavanaugh said it directly and with total clarity: 

“The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood. The text of the Constitution is the “Law of the Land.” Art. VI. As a general matter, the text of the Constitution says what it means and means what it says. And unless and until it is amended, that text controls.”   

“As the Court’s decision today notes, Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment’s individual right until recently.”‍ ‍  

The most compelling possible amicus briefs that should be presented to the Court as it hears oral arguments on December 2 and considers the case through June 2027 are the after action reports by the Las Vegas Police Department in August 2018 with regard to the October 1, 2017 mass shooting noted above and by the Department of Justice in 2024 regarding the hapless law enforcement response to the May 24, 2022 school shooting in Uvalde. 

Both irrefutably describe the incredible murderous killing power of the AR15, whether from hundreds of yards in Las Vegas to close-range in classrooms with children, not to mention the tragic havoc of Orlando, El Paso, Sutherland Springs and so on. 

So here we are, awaiting oral arguments in December and a decision next year, with a painful sense that the jerry-rigged SCOTUS Second Amendment jurisprudence since Heller will yield a Court ruling accepting that AR15s are “in common use” and, with now-legal bumps stocks, are not machine guns, and thus are not subject to restrictions or concerns by public safety officials in the states or anywhere in the United States. 

What is to be done? 

All concerned Americans should speak out for the truth, truth in history from 1787 onward, truth in describing the firepower and human impact of individual weapons through the two intervening centuries that bring us to today, and truth in assessing the unknowns of the future, particularly, the unknown unknowns of weaponry of the coming decades and centuries. 

As Las Vegas, Orlando, Uvalde and so many other needless and preventable (regarding the scale of killing and wounded victims) mass casualty events so forcefully demonstrate, the AR15 is in fact the weapon of choice among those who are intent on mass murder, and is “in common use” for those legal but proven to be murderous gun owners among us. 

For the Supreme Court justices, some simple but pressing questions. 

Who can predict the when, where, and how of the next mass casualty event involving AR15s or other assault weapons or high-capacity magazines, other than to recognize that there will be such and that the aftermath will be terrible for the victims and their families, and that the U.S. population will once again be unnerved. 

Who can predict the nature of and lethality of individual “arms” 10, 50 or 100 years from now? 

Who can explain the motivation of Justices in writing so casually and academically about “arms” while ignoring the great and well-documented human toll of gun violence, assault weapons, high-capacity magazines, bump stocks and ghost guns, not to mention the resulting social, economic and political costs related to both gun violence in general and mass casualty events in particular? 

Who can find anything logical or credible in the gun lobby narrative asserting the right of citizens to rise up against their own democratically elected governments, with the constitution specifically referring in Article1, Section 8 to one of the militia’s purposes being to “suppress Insurrections”? 

Who can deny that the gun lobby worked hard to block renewal of the 1994-2004 ban on assault weapons, leading to a concerted fear mongering marketing campaign resulting in the sale of millions of AR15s by profiting gun manufacturers over the ensuing two decades, some of which were used by legal gun owners turned mass murderers? 

We can only hope today that truth and public outcry can have an effect on the Supreme Court justices, although the cards are stacked against reason given that Solicitor General Sauer will be energetically singing off the gun lobby’s song sheet on December 2. 

Respected constitutional law experts and law enforcement leaders, and not just this citizen blogger, have to voice their deep concern loudly, publicly and convincingly before December and afterwards so that the Justices will feel responsibility – perhaps in some cases, even shame – for the impact their past and upcoming decisions have on future gun violence victims. 

The Supreme Court holds the key to setting things right with morality and humanity, to make the U.S. less violent and more socially stable over the decades and centuries ahead. 

Speak out and speak up.  Help the Court see its way to doing the right thing, allowing states to restrict the AR15 and similar weapons.