national gun control confiscation
(AP Photo/Lynne Sladky)
◀Previous Post
Next Post▶

The Supreme Court’s ruling in NYSRPA v. Bruen threw the political project of gun regulation into question. Before Bruen, states could enact new kinds of gun restrictions if they passed a relatively stringent means-ends test. That is, if laws meaningfully reduced danger, while not too heavily burdening the right to self-defense, they were allowed. After Bruen, only gun controls actually in force in the founding era, and their close analogues, are permissible. Many fewer regulations will now pass the constitutional test.

Here, we suggest an unlikely source of continuing power, after Bruen, for states to disarm individuals they deem dangerous: qualified immunity. Qualified immunity shields state officers from monetary liability for many constitutional violations. In short, unless a previous case “clearly established,” with high factual particularity, that the officer’s conduct was unconstitutional, the officer does not pay.

Thus, a state law enforcement officer may, after Bruen, confiscate an individual’s firearm if the officer deems that person too dangerous to possess it. The officer’s justifications may conflict with the federal courts’ understanding of Bruen or the Second Amendment—perhaps flagrantly. But unless a previous, authoritative legal decision examining near-identical facts says so, the officer risks no liability. And because each individual act of disarmament will be unique, such prior decisions will be vanishingly rare. The result is a surprisingly free hand for states to determine who should and should not be armed, even in contravention of the Supreme Court’s dictates.

Proponents of gun rights, who skew conservative, may see this as lawlessness. In the past, it has been liberals and civil libertarians who have seen qualified immunity that way. Here, as elsewhere in the law, what’s good sauce for the goose is good for the gander. Gun rights advocates may therefore either accept qualified immunity’s implications for their preferred rights or join with their usual adversaries in opposing it everywhere.

— Guha Krishnamurthi and Peter Salib in Qualified Immunity as Gun Control

◀Previous Post
Next Post▶

RELATED ARTICLESMORE FROM AUTHOR

72 COMMENTS

    • These “professors” are advocating denying people’s rights, rights guaranteed under the 2nd Amendment …. shouldn’t “Speshul Klownsul” Jack Smith be convening a grand jury and indicting them?

  3. In fewer than 5 years the left goes from ACAB to using qualified immunity to get away with anything.

    If they weren’t mentally ill before becoming leftists the constant acrobatics to keep contradictory ideals afloat in their minds would surely drive them to it.

    • They’re authoritarians. They would prefer to do away with local law enforcement because they can’t always control it. Notice how they aren’t anti-federal police. They’re very pro-federal police. They give them loads of money to expand and arm themselves. In the meantime, if they can get local law enforcement to play along with their schemes, they’ll use them.

  4. Wait, there’s no constitutional precident dealing with firearms confiscation? I seem to recall a certain king wanting his troops to collect the serf’s guns, serfs wanted to keep them, a slight disagreement ensued, immunity was disproven… and the rest is history.

    • RE: “After Bruen, only gun controls actually in force in the founding era, and their close analogues, are permissible. Many fewer regulations will now pass the constitutional test.”

      Really? When and where exactly in Historical Anologues has Gun Control did anything but cause oppression, discrimination, torture, murder, slavery, genocide, etc?

      If the public knew full well about the History of Gun Control there would be calls to abolished it like its sidekick Slavery.

      The biggest reason the public has not been informed circles back to zipped lipped Gun Talkers. The results are knee jerk mobs of marching history illiterates holding signs begging lawmakers for Gun Control.

      The choice is between Defining Gun Control or remain silent to appease what are Gun Talking bigots who see an agenda Rooted in Racism and Genocide as something that fits their narrative.

  5. Here’s a BS way to get things we want that we admit to be wrong but others have done it so let’s do it! Sounds like rationalization meets grasping at straws with a bit of creative morals, sour grapes, and desperation thrown in for flavor. Who is attempting to exploit loopholes? Grabbers! Who has rights clearly spelled out, if you can read? We do!

  6. In the end the liberals and the left we always prefer the police. Instead of the armed citizen. They have taken their masks off.
    Good.

    • “Translation; ‘F#&k the Constitution’.”

      I say, F#&k around and find out.

      What he proposes is a real good way to start something *very* ugly… 🙁

  8. Not very many (read that almost zero) rank and file police officers believe in firearm confiscation as a means of gun control. If the bosses put a policy in place that requires or even recommends they do so the protections established in Bruen reattach.

    • “Not very many (read that almost zero) rank and file police officers believe in firearm confiscation as a means of gun control.”

      Far too many won’t want to rock the boat and jeopardize their jobs.

      They may not do it, but they will conveniently not see anything… 🙁

      • have found that to be true…although they will do everything they can to cover their ass…

      • On the contrary, no it does not. If it can be proved that the police officer acted outside the scope of his duties and/or KNEW what he was doing was in violation of state or federal law, he can be prosecuted.

  10. I do not like your shirt. Surrender your gun.

    You were going two miles above the speed limit. Surrender your gun.

    You were driving two miles below the speed limit. Surrender your gun.

    Only criminals maintain the speed limit (to avoid suspicion). Surrender your gun.

    Your shopping cart is filled with organic foods (a sure sign of mental illness). Surrender your gun.

    You eat pizza with a knife and fork. Surrender your gun.

    I like ice cream. Surrender your gun.

    I want your gun. Surrender your gun.

    • I see you have purple hair, reek of marijuana, are on anxiety meds and have a child bound with duct tape in the back of your car. Here, have a gun.

      • Basically. They promote and run cover for human trafficking and the exploitation of children.

        • “Nice! Smirked out loud.”

          A *snicker* just a smirk that’s audible… 🙂

      • LOL, being a bartender I see this all the time. If you’re an anxious person to the extent you need meds, pot is probably going to make you MORE anxious not less. You see it with drunks too, when they don’t have a buzz on they are wracked with anxiety from the booze.

  11. Example #7489 that the vast majority of police will blindly follow the orders of whoever is holding their pension funds.

    BTW, stacking a gun collectors items on top of each other in the back of a pickup is a 100% ACAB move.

    If gun rights orgs can’t stop a red flag law from being put in place they at least need to try to put a stipulation in place that says that any guns confiscated has to be transported and stored in a hard shell case and one gun per case.

    • “…the vast majority of police will blindly follow the orders of whoever is holding their pension funds.”

      Don’t ever forget it… 🙁

  12. Is it any wonder that many hate lawyers? They try to twist everything to their own advantage and this is precisely why we must never give an inch on ANY of our rights. As I see it, Bruen was a needed step to fully restore our 2A rights, as intended by our founders, and the BS spouted by the authors of the article is part of a criminal conspiracy to continue depriving us of our rights.

    • “As I see it, Bruen was a needed step to fully restore our 2A rights,…”

      That decision was pure brilliance by Thomas. He sees quite clearly their end-game, and gave us a tool-box to stop them.

      We were hoping beyond hope to get strict scrutiny, and got something even better.

      I can see the mindset of “At the founding of this country” as a template for other civil rights, to return this nation to it’s proper course… 🙂

  13. I think I would recommend a different approach and that is communities should start forming Home Guard self-defense groups to protect themselves and neighbors from unconstitutional acts by Federal Law Enforcement in particular. Given the corruption in this current government where they routinely disregard the constitution and laws of the land but expect you to comply is getting to the point of being ridiculous. They get a warrant and then exceed the scope of it to gather information they have no right to have (ie: cases of ATF and IRS teaming up on FFL dealers to take forms they are not entitled to take). I doubt that today most Federal Warrants on law abiding citizens are obtained without them fabricating the evidence and the charges. I think collective protection is the only way to insure that people are protected from being bullied and intimidated by the US Gestapo.

    • well,…we have seen one example of that…seeing them pack up and leave a guy’s cattle alone when confronted by matching force…in the end there are far more of us than them…something they are acutely aware of….

  14. The left-wing isn’t even trying to hide or obfuscate it any more – they are saying flat out “we will control your rights, we will take them away, and the heck with the Constitution ’cause we are your masters and you will submit or we will come for you and if you or your family gets hurt or killed when we come then we will say you were ‘dangerous’ and say its for ‘public safety’. And oh yeah, we have qualified immunity so fu*c you.”

  15. the current supreme court is probably happy to narrow qualified immunity. Willful civil rights violation is not covered anyways. Yeah the process is the punishment but hey the reward may be owning a few cops houses.

  16. These same “professors” would justify GENOCIDE to get around Bruen, given their logic. The left is corrupt and morally bankrupt and see the use of force and murder as legitimate options in the exercise of power.

    • In video above … Washington Gun Law President, William Kirk, discusses a new legal test, one that actually was created out of thin air, which perverts the Common Use Test, clearly articulated in Heller. They are trying to turn it into a “Common Use for Self-Defense Test” whereby judges can then subjectively determine the usefulness of a particular firearm, from the bench, and then uphold outright bans of such items.

      Of course its not going to pass constitutional muster at SCOTUS, its clearly wrong.

  18. This is a win-win scenario for the Left.

    First, they actually hate qualified immunity, so in promoting its obvious abuse, they set the stage for future limitations to be imposed by SCOTUS, who will not view such abuse lightly.

    That’s a “win” for the Left.

    And in the mean time, they get a few more guns off the street. Win.

  19. What a fantastic idea. Cops can go bust up newspapers and websites for.causes they don’t like. We can look the other way as they bash gay, trans, and racial minorities. Heck, let’s just bring back slavery and let cops torture confessions out of people. Just make sure your torture is new and unique so there’s no precedence against it. This was written by a couple of law professors. I’m unsure if they are gun grabbing loonies or are doing “A Modest Proposal” satire of qualified immunity. I’m hoping for the latter, but I fear it’s the former.

    • reminiscent of the time some philly cops used a taser as part of their “interrogation techniques”…..

      • Phonebooks, particularly ones from large cities help elicit confessions at one time.

  20. “Tyranny doesn’t exist unless I disagree with the policy or it is used against me,” said every single pro-drug anti-5A property douche bag conservative.

    Drug War: SCOTUS’ excuse to believe the BoR doesn’t exist, and GOPpers just now catching on to the expansion of the police state they demanded.

    Effing morons are far more stupid than any leftist.

  21. There is a reason why Shakespeare said in his time to shoot all the lawyers.
    It seems things have not changed very much. In a few 100 years that have passed.

    The word “lawyer” is just a title. It does not mean they know what they’re talking about. And they can prevent you from speaking for yourself in court.

    And they can work to prevent you from even having your own lawyer. Which is what Hillary tried to do to president Nixon.

    This is just another example for a national divorce. Never forget. It was lawyers who said slavery was ok in 1850.

    • 90% of law is the doctrine of precedent and the rules to interpret law. The most common rules are the literal rule which is the law as it is written and the golden rule which is the “good” which is intended from the law. The rest is about finding appropriate precedents for your case.

      • That’s why the ‘rule of lenity’ is so important.

        A law seen as ambiguous is to be ruled in the favor of the citizen, not the state…

  22. If a police officer who signs an affidavit that he should have known to be false, he is guilty of perjury, and should be sued. As he is exhibiting INCOMPENTENCE, he is not covered by “qualified immunity.”

  23. These people never change.

    They’re always eager to volunteer others to take the extreme risks involved in disarming the peasants.

    Stack up or fuck off.

  26. Much ado about nothing.

    First, where the authorities recognize what they are doing is illegal, QI usually doesn’t attach.

    Second, the first time they start doing this, look for a lawsuit for injunctive relief (which QI doesn’t apply to — it just applies to claims for monetary relief). Once the injunction comes down, violation by a defendant 1) is contempt, and (2) QI doesn’t apply because the law is now “clearly established.”

    What this does show is that support of the “rule of law” by the left is illusory. They only care about power. Kinda like the Berkeley Law School dean recently caught on video saying that his school can intentionally racially discriminate against whites in hiring as long as they don’t say it out loud, and that “if I’m ever deposed, I’m going to deny saying” that.

    • “if I’m ever deposed, I’m going to deny saying” that.

      While being video recorded?

      How *Precious*… 🙂

      • Typical more accurately but yeah gotta love old Project Veritas and whatever the spin off group that is still doing the same thing is calling itself lately. Actual journalism is still alive largely because of them.

      • Yup, it was in a class lecture **that Chemerinsky was recording** so that his absent students could watch it to catch up.

        He truly believes he is bulletproof, and thus can say crap like this. (He’s tried to walk it back a touch after Chris Rufo made it go viral, but even that was a smug wink wink nod nod.)

        Unfortunately, the odds of California authorities ever doing anything punitive to him are less than none (by that I mean CA authorities will likely reward him). And the only bar he is admitted to appears to be the DC bar . . . you know, the same bar association that gave Kevin Clinesmith his law license back after he was convicted of deliberately lying to the FISA court.

        So as a practical matter, Chemerinsky probably is bulletproof on this.

  27. “Gun rights advocates may therefore either accept qualified immunity’s implications for their preferred rights or join with their usual adversaries in opposing it everywhere.”

    Or…we could just choose violence when someone tries to take someone else’s gun(s)

    • Are you going to man up and lead by example, or hide like the coward you are and goad others into doing your dirty work?

      You’re a jackass.

  28. Since when “qualified immunity “ mentioned anywhere in the Constitution? Another Marxist sophism.

  29. Qualified Immunity was invented by the courts, and may have been barred by a law from the 1880’s. So it’s days may be numbered.

    • In order for a suit to be brought where qualified immunity is used as a defense, the plaintiff must show that the defendant was 1) acting with knowledge that he was acting outside the scope of his duties and/or b) knew what he was doing violated either State or Federal law but did so anyway.

  30. Get rid of qualified immunity. OK. that’s fine with me.

    But even while it still exists, knowingly and deliberately finding an unconstitutional work around the courts rulings about an individual right is criminal because the cop does not think he is acting in a proper manner.

    • “Get rid of qualified immunity. OK. that’s fine with me.”

      And when your police department can no longer find anyone to hire, what then?

      Just let anarchy reign, aka- ‘The Purge’?

  31. Regardless of Bruen.

    Qualified Immunity should no longer be applied or even as much be a thing from them moment it was decided that police officers do not have any obligation to defend the public.

  32. Oh crap. I didn’t know this was a thing. Break the law as long as there is no penalty for it. I know some lucky Iraqi’s.

  33. The Doctrine of Qualified Immunity has long been a contentious and unconstitutional safeguard shielding law enforcement officers from accountability, even when they violate clearly enumerated constitutionally protected civil liberties and civil rights. This legal doctrine has fostered a continuing pattern of law enforcement abuses, creating an environment where officers can act with impunity, shielded from all consequences for their misconduct.

    Qualified Immunity has allowed law enforcement misconduct to bypass constitutional protections that exist to safeguard citizens’ civil liberties from government abuses. Its application necessitates that victims of police misconduct prove their rights were violated based on a “clearly established law” — an unreasonably stringent standard that often obstructs the pursuit of justice. Consequently, this results in a legal framework that grants excessive deference to law enforcement officers, while depriving victims of constitutional remedies and restitution. This practice bears resemblance to the controversial SCOTUS Chevron Deference doctrine, enabling unaccountable and abusive behavior by Government Agencies towards individual citizens.

    This doctrine undermines accountability in law enforcement. By providing near-absolute protection to officers, unless they commit identical actions previously deemed unconstitutional, it discourages officers from acting lawfully. As a consequence, citizens are left without recourse, as those suffering from law enforcement abuses rarely receive compensation or see their grievances properly addressed.

    Moreover, the lack of accountability stemming from this doctrine erodes trust between law enforcement and the communities they serve. Misusing discretionary charges, colloquially “Contempt of Cop,” raises concerns, charges, such as “failure to obey a police order” or “resisting arrest,” as stand-alone charges’, as these charges are oftentimes employed to harass individuals who challenge an officer’s authority, even without committing a crime, and is treated as a penalty to the citizens who must then go through “the process” (my own experiences and interactions with the NYPD, PAPD and the 4th amendment as a protection against searches where no crime ever occurred https://www.scribd.com/document/46046109/Legal-Brief-Updated). Such abuse of power undermines citizens’ rights and fosters mistrust between law enforcement and communities.

    Additionally, Qualified Immunity exacerbates the unequal application of the law, disproportionately impacting minority communities and marginalized individuals, such as gun owners, who often bear the brunt of law enforcement abuses. The doctrine’s protection of officers’ actions perpetuates systemic biases, further eroding public trust in law enforcement.

    Let’s unite to address these concerns and advocate for reforms that protect our constitutional rights while maintaining law and order. #QualifiedImmunity #CivilLiberties #PoliceReform #JusticeForAll

    • damion, How is “qualified immunity” “unconstitutional?”
      There is no such charge as “contempt of cop”.
      For your edification, qualified immunity does not bar you from bring a law suit. What is does is limits your avenue in the Federal Court if the officer is acting in the scope of his duty. If the officer is not acting within the scope of his duty, you can sue.
      The qualified immunity theory prevents frivolous law suits by individuals who are retaliating for being arrested.

Comments are closed.