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Viva Las Vegas: What Laws Protect Us From Mass Shootings?

People have probably been praying for Las Vegas for centuries, but recent events have given those prayers an entirely new and horrifying purpose. The mass shooting in Las Vegas is the deadliest mass shooting in U.S. history, and Nevadans are left wondering what, if anything, could have been done to prevent it.  Mass shootings the size of the one that occurred in Las Vegas do not fit any specific mold.  The assailants vary in age, background, and apparent motivation.  The weapons, locations, and methods are different.  All that citizens can do to protect against further acts of senseless mass violence is to focus on the W’s:  Why, Where, Who, and What. 

Focusing on the why will not solve the issue.  Most assailants, including the one in Las Vegas, take their own lives and leave law enforcement to speculate as to their motives.  One of the more common theories regarding motivation is that these assailants desire to live in infamy by having their name connected to a historical act of mass violence.  Because the media gives so much attention to mass shootings, this theory might be right.

The obvious solution would be to enact a law that prohibits the media from using the assailant’s name or photo.   However, the First Amendment’s guarantee to freedom of the press prohibits Congress or the states from enacting these laws. Prohibiting the press from reporting on something ahead of time is referred to as a “prior restraint on speech.”  Recognizing that a free press is a symbol of a free country, the United States Supreme Court has limited prior restraints to a very narrow category of “exceptional cases.”  CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994).  A prior restraint is only constitutionally permissible “where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.”  Id.  That type of evil is not present in mass shootings.  They are rare, and therefore, not great.  We are left to guess at the assailant’s motives, so the evil is not certain.  And gun control is arguably the less intrusive measure to combat mass shootings.

Gun control focuses on the Where, Who and What. But laws preventing where a gun may be discharged are clearly not the answer to preventing mass shootings.  It is illegal to discharge a firearm in a hotel or public resort.  NRS 202.280(1).  Yet, Las Vegas happened.  All states, including Nevada, prohibit possession of a firearm on school premises.  See NRS 202.265(1).  Yet, Columbine and Sandy Hook happened.   

Laws preventing who can possess a gun also do not seem to be the answer.  Nevada has some of the most lenient gun control laws in the country, and does not require its citizens to obtain a permit before owing a firearm.  However, Nevada has enacted laws preventing those who are statistically likely to engage in gun violence from possessing a firearm.  It is illegal for a person with a domestic violence record to own or possess a firearm in Nevada.  NRS 202.360(1).  Felons and fugitives from justice also may not own or possess firearms in Nevada.  NRS 202.360(1).   And, a person who has been found to be mentally ill by a court, who has entered a plea of guilty but mentally ill, or who has been acquitted from a crime due to insanity cannot own a firearm in Nevada.  NRS 202.360(2).

The problem is that most mass shooting assailants pass background checks.  They are not felons.  While they may have histories of domestic violence, they do not have domestic violence police records.  While they may be mentally ill, they have not been found by a court to be mentally ill.  To illustrate, the Las Vegas assailant legally owned upwards of 50 firearms which may have been used in the attack.

Perhaps the key to preventing mass shootings lies in what guns are accessible to the general public.  Although the weapon of choice varies in mass shootings, automatic and semiautomatic rifles are commonly used.  Under federal law, only automatic weapons made or registered before May 19, 1986 may be owned by a citizen provided the weapon is registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives and the owner has passed an extensive background check.  Despite this federal restriction, some states, like California, completely prohibit possession of automatic weapons regardless of when they were made or registered.  Many states place significant restrictions on the possession of semiautomatic weapons.  Nevada does not have any laws that restrict what type of firearm may be owned.

Enacting such a law might be a simple solution, were it not for a little thing called the Second Amendment. Prohibitions on the types of firearms that may be owned by a citizen raise significant Second Amendment concerns.  For example, in District of Columbia v. Heller, the United States Supreme Court held that a District of Columbia ban on the possession of handguns by any citizen violated the Second Amendment because it infringed the individual’s right to bear arms.   554 U.S. 570, 628-29 (2008).   Reasoning that the primary purpose of the Second Amendment was to allow a citizen to bear arms in self-defense, the United States Supreme Court struck down the D.C. law because handguns are the preferred firearm for self-protection. Id.

However, Heller left open the question of whether bans on semiautomatic and automatic weapons would be constitutionally permissible under the Second Amendment since these weapons are not typically used for self-defense.  The federal courts generally agree that the Second Amendment does not guarantee the right to possession of a certain type of firearm, provided the individual’s right to bear arms in self-defense is not otherwise unconstitutionally infringed.  See Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 538 (6th Cir. 1998) (“Moreover, we note that the Federal Constitution does not provide a right to possess an assault weapon.”).

A ban on automatic weapons and semiautomatic rifles may also be constitutionally permissible under Nevada’s Constitution.  Although Nevada constitutionally guarantees its citizens the right to bear arms for hunting, there is no reason to use an automatic or semiautomatic weapon to hunt.  See Nev. Const., art. 1, § 11.  No hunter is going to mass shoot a herd of deer.   

So what should Nevadans do?  The reality is that no law can eradicate evil from this world.   No law can bring back the 59 lives that were taken too soon.  We must, as Elvis would want us to, move forward into the future with a strong heart and a nerve of steel.  Viva Las Vegas.