On October 15, a sixteen-year-old former student carried a shotgun into Silver Rail Elementary School in Bend, Oregon, and killed three children and a teacher. Two others were seriously wounded. Kaylub Giamanco, 36, the father of two students at the school, followed the gunman into the building and shot him, according to police. Police, who arrived within roughly three minutes of the first calls, found the attacker dead. I begin with the victims because they are the only fact that matters first. Everything that follows concerns what the Supreme Court will weigh on December 2 in Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, and I offer it with that loss in view.
What Happened, and What Was Said
Bend Police Chief Mike Krantz said that a teacher first threw her cellphone at the gunman and tackled him, and that Mr. Giamanco then shot him with a .40-caliber pistol he had legally kept in his car. His family has said he held a concealed carry permit. President Trump said on October 16: “It’s a terrible thing, but thank goodness for a man that had a gun and knew how to use it.”
The sequence of events is the point. Police response in this case was fast by any measure, and three minutes is still three minutes. The first people to act were a teacher and a parent. That is the oldest premise of the right to keep and bear arms: every person is the first responder to a threat against his own life and the lives of those near him, and the government is the second.
The Policy Case for a Ban
The respondents’ merits briefs, from Cook County and Connecticut, are due October 21. I expect them to argue that changed social and technological conditions justify prohibiting AR-15 rifles, and to lean heavily on nineteenth-century Bowie knife regulations as historical analogues. That is a prediction about their briefs, not a report of them. I believe those arguments fail on the law, for reasons I have set out elsewhere, including the Third Circuit’s en banc decision in Cheeseman and my own work on the “common use” test.
This article concerns something different: the surrounding policy narrative, which holds that a prohibition on a rifle prevents mass violence and that armed citizens add little. Bend is a hard fact against it.
A Shotgun in a Strict-Law State
Police say the attacker used a pump-action shotgun. No ban on AR-15 rifles would have reached it. If the Court asks, and I suspect Justice Barrett or Justice Kavanaugh may, what a prohibition on one category of rifle accomplishes when the next attacker can use a shotgun or a handgun, the answer is that it accomplishes nothing the State can demonstrate. That is my forecast of the questioning, not a report of it.
Nor can Oregon be dismissed as a permissive jurisdiction. Giffords Law Center awards it an A-. Its voters passed Ballot Measure 114 in 2022, which would require a permit to purchase and limit magazine capacity, although the measure has never taken effect. Oregon nonetheless has universal background checks, a red flag law, and a ghost gun ban. The Trace, an outlet not known as a friend of gun rights, asked after Bend why school shootings occur even in states with strict gun laws, and noted that eight of the deadliest school shootings in the past fifteen years occurred in blue states, including Oregon, according to the Gun Violence Archive. The scorecards that rank these states did not predict the outcome.
Beccaria and the Disarmed Innocent
None of this is new. In 1764, Cesare Beccaria wrote in On Crimes and Punishments that laws forbidding the carrying of arms disarm only those who are neither inclined nor determined to commit crimes, and so make the assailant’s work easier. Jefferson copied that passage into his commonplace book, and John Adams quoted Beccaria in defending the British soldiers after the Boston Massacre. The founding generation had read the argument and understood it.
My position is not that no one should be disarmed. In United States v. Rahimi, 602 U.S. 680 (2024), the Court held 8-1, in an opinion by Chief Justice Roberts, that a person found by a court to pose a credible threat to another’s physical safety may be temporarily disarmed. I have said that outcome helped us, because it places the line where it belongs: on demonstrated danger, not on the ordinary rifle in the law-abiding citizen’s home.
The corollary is that violent offenders must be imprisoned and the dangerously mentally ill must be addressed through civil commitment. When a society fails at both, the resulting tragedies become the fuel for restrictions on people who did nothing wrong.
What the Justices Will Weigh
Law decides these cases, and I remain confident of the law. But the Justices read the news, and I expect Bend to inform how they hear the claim that rifles in common use can be banned for the public’s safety. The citizen who stopped the harm in Bend is the person the Second Amendment exists to protect, and he is the person Cook County and Connecticut ask the Court to disarm.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.