Law Profs Tout Qualified Immunity for Unconstitutional Gun Restrictions – By J.D. Tuccille (Reason) / Aug 2, 2023
Promoting impunity for violating rights as a policy tool? What could go wrong?
Some ideas are so terrible that combining them into a cocktail of awfulness makes rotten sense. So it is with gun control and qualified immunity: Why not mix impunity for violating basic rights with denial of a specific right so as to maximize the harm? At least, that’s the inspiration that struck two law professors who propose qualified immunity for enforcing even overtly unconstitutional gun control measures. While the duo sees the idea as much as a means of weakening officials’ protections from liability as for promoting restrictions on private arms, it’s a dangerous innovation that could entrench authoritarianism.
Constitutional Protections Are So Frustrating
“Gun regulation seems to have hit a legal brick wall,” complain Guha Krishnamurthi, associate professor at the University of Maryland Francis King Carey School of Law, and Peter Salib, assistant professor at the University of Houston Law Center in Notre Dame Law Review Reflection. “In New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court threw out what had been the standard approach for applying the Second Amendment to gun laws.”
Krishnamurthi and Salib argue that Bruen impedes “regulatory innovation” and leaves lawmakers “shackled to the regulations of the distant past.” That’s an interesting way of regretting that government is bound to respect constitutional protections for individual rights. But the two legal thinkers have a fresh regulatory innovation to propose for bypassing such protections—or, at least, a fresh way of applying a controversial legal doctrine to achieve their desired ends.
