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Scholarship Highlight: Qualified Immunity, Age Restrictions, and New Medical Research

  • Date:
  • July 14th, 2023

By: Andrew Willinger

In a new essay forthcoming in the Notre Dame Law Review Reflection, Guha Krishnamurthi and Peter Salib argue that, after Bruen, “states, or at least certain agents of them, retain significant authority to disarm individuals they deem dangerous” because the doctrine of qualified immunity likely forecloses monetary damages and renders legal challenges largely ineffective outside of each individual case.  Krisnamurthi and Salib describe how this might work in the domestic violence context:

[P]olice officers might be given access to the factual records underlying restraining orders for domestic abuse. They would review the facts of each case individually and determine whether the subject of the order ought to be disarmed “for the protection of” their domestic partner. Given the nature of such orders, they might reasonably conclude disarmament warranted in most instances. The police could, pursuant to their statutory authority, demand that the individuals they determined to be dangerous surrender their weapons. Some individuals might refuse or claim that they owned no guns. But if the officers had probable cause to believe otherwise, they could search the relevant premises and seize any discovered.

In an article in the Texas Law & Policy Review, George Mocsary summarizes and praises the August 2022 district court decision in Firearms Policy Coalition v. McCraw striking down Texas’ ban on those under the age of 21 carrying handguns in public (we previously covered that decision here and here).  Mocsary argues that the post-Bruen period has been characterized by legislative defiance and judicial complaining.  By contrast, however, Mocsary characterizes the decision in McGraw as “a jurist saying what the law demanded rather than what it should demand” and endorses Judge Pittman’s historical analysis:

The Founders and their contemporaries regularly carried arms in public from an early age.  The right of law-abiding citizens of all ages to carry arms in public was never prohibited, and was only partially regulated by a total of four statutes, over the span of roughly two centuries comprising the colonial and Founding eras

In closing, Mocsary praises the opinion as an example of not “yield[ing] to the majoritarian impulse that the U.S. Constitution seeks to restrain.”

Finally, the Spring 2023 issue of the Journal of Law, Medicine & Ethics contains new scholarship on issues including racial differences in safety perception among gunowners and non-gunowners, citizen perspectives on Missouri’s Second Amendment Preservation Legislation (which was struck down by a federal court earlier this year, as summarized in this post), and the intersection between gender and “stand your ground” laws. 

Guha Krishnamurthi & Peter N. Salib, Qualified Immunity as Gun Control, 99 N.D. L. Rev. Reflection _ (forthcoming 2023)

Abstract:

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.

George A. Mocsary, Treating Young Adults as Citizens, 27 Tex. Rev. L. & Pol. 607 (2023)

Introduction:

John Stuart Mill distilled what the Founders knew all along: majorities harnessing the power of the state are often willing to trammel minorities’ rights. The Founders drafted the Constitution to curb, in James Madison’s words, “the superior force of an interested and overbearing majority.” But how are mere “parchment barriers” to withstand overbearing majorities? “[I]t would require,” in Alexander Hamilton’s words, “an uncommon portion of fortitude in . . . judges.”

In issuing Firearms Policy Coalition v. McCraw, the first post-Bruen merits win for Second Amendment claimants, Judge Mark T. Pittman displayed just such fortitude in guarding the Second Amendment rights of eighteen-to-twenty-year-olds from a Texas statute that forbade them, with narrow exceptions, from applying for licenses to carry firearms in public.