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Scholarship Highlight: Loyalty Disarmament and “Gun-Hunting”

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new essay in the Columbia Law Review Forum, Deep Gulasekaram argues that Revolutionary-era laws that disarmed those who refused to take loyalty oaths are poor analogues for modern gun restrictions on non-citizens.  “The undocumented immigrants of today are not the Tories of the American Revolution,” Gulasekaram writes.  Decisions finding an analogical fit, he contends, “have engaged in sloppy reasoning and ill-fitting analogies, which has gone unrecognized because the subjects of regulation are a politically unpopular subgroup of noncitizens.”

Amanda Savage has posted a new article, forthcoming in the Columbia Law Review, that criticizes the methods police forces use to glean whether an individual is likely carrying a firearm.  Savage describes how Baltimore police officers use the “characteristics of an armed person” framework to preemptively identify gun carriers.  She argues “that the CAP framework’s reliability should be considered before trial courts accept testimony and conclusions based upon it.”  Savage also examines the interplay between CAP approaches and Second Amendment law following the Supreme Court’s Bruen decision. 

Pratheepan Gulasekaram, Loyalty Disarmament and the Undocumented, 125 Colum. L. Rev. F. 29 (2025)

 

Abstract:

 

Since the Supreme Court’s District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among “the people” who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court abandoned the tiers of scrutiny approach. In New York State Rifle & Pistol Association v. Bruen in 2022, the Court prescribed a novel history-focused inquiry in its stead. Since then, the federal government and several lower federal courts have sought to justify present-day gun restrictions by searching for historical antecedents created to address analogous public policy concerns in analogous ways. In conducting that historical inquiry for § 922(g)(5), several courts have conjured Revolutionary War–era statutes that disarmed Loyalists to the British Crown. This Piece explains why such an analogy is a poor fit, arguing that the respective statutes serve incommensurate purposes and operate in materially different ways. It concludes with the suggestion that continued reliance on Bruen’s methodology (and attendant analogies to Loyalist disarmament) portends diminished and precarious constitutional protections for noncitizens with regard to their self-protection and, more broadly, other fundamental constitutional guarantees.

 

Amanda Savage, The Pseudoscience of Gun Hunting, __ Colum. L. Rev. (forthcoming 2026)

 

Introduction:

 

Police departments nationwide train their officers to assume that a member of the community is armed using the “characteristics of an armed person” (CAP) framework. This framework has become a pseudoscientific justification for stop and frisk, comprised of multiple characteristics that ostensibly allow police to determine whether a person is carrying a handgun.

The CAP framework is a form of proactive policing: patrolling to find potential crime and preempt or stop it, rather than responding to crime after it is reported. Such tactics lead to myriad legal and social problems, including racialized harassment, widespread distrust of police, and pervasive Fourth Amendment violations. Yet legal scholarship has offered surprisingly little analysis of proactive policing beyond the specific context of stop and frisk in New York City and has offered no analysis of the CAP framework.

To expand the conversation regarding proactive policing, this Article examines the CAP framework. It uses the Baltimore Police Department’s (BPD) implementation of this framework as a case study. The BPD employs units of officers dedicated to proactive policing and trains officers to identify “characteristics of an armed person” in civilians. Officers then rely on this training to identify civilians they believe are armed, frisk them for weapons, and pursue arrest and criminal charges if the officers discover anything unlawful. But the CAP training is so superficial and broad that nearly everyone exhibits the targeted characteristics. Everything from turning one’s body or touching one’s waistband to wearing an untucked shirt or having an unzipped backpack, can give an officer cause to conclude a person might be armed and engage that person to investigate. The list goes on and on. Instead of guiding officers to accurately identify whether an individual is armed, the CAP framework gives officers unbridled discretion to frisk whomever they choose. The CAP framework can and does function as a tool for racialized harassment, both in Baltimore and elsewhere around the nation.

This Article argues that the CAP framework cannot provide legal justification for stops and frisks, especially post New York State Rifle and Pistol Association v. Bruen, because possessing a handgun is not necessarily unlawful and those who possess handguns are not necessarily dangerous. Putting the CAP framework into the broader context of proactive policing, this Article argues that the effects of the framework are contrary to its stated goal of crime reduction. The Article argues that the CAP framework violates the Fourth Amendment, and advocates that defense attorneys bring both pretrial Fourth Amendment challenges to the framework and pretrial reliability challenges that use existing discovery and evidentiary rules and analogize to trial courts’ gatekeeping function with expert testimony.