Notre Dame Law Review

View PDF

Guha Krishnamurthi* & Peter N. Salib**

The Supreme Court’s ruling in New York State Rifle & Pistol Ass’n 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.

Continue reading in the pdf version . . .

© 2023 Guha Krishnamurthi & Peter N. Salib.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

* Associate Professor of Law, University of Maryland Francis King Carey School of Law.

** Assistant Professor of Law, University of Houston Law Center; Associated Faculty, Hobby School of Public Affairs.

We thank Joseph Blocher, Jake Charles, Charanya Krishnaswami, Alex Platt, and Joanna Schwartz for insightful comments and suggestions.  We also thank the brilliant editors of the Notre Dame Law Review.