Most progressive ideas are so terrible they don’t survive scrutiny, fortunately. However, two Law Professors are proposing an entirely new interpretation of Constitutional Law that takes infringement to a whole new level.
This from reason.com.
These two law geniuses—in their own minds—have proposed mixing:
[I]mpunity for violating basic rights with denial of a specific right so as to maximize the harm.
Their inspiration is wrapped around 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.
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 have complained in Notre Dame Law Review Reflection that:
Gun regulation seems to have hit a legal brick wall. 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.”
This is an un-American, un-Constitutional way “of regretting that government is bound to respect constitutional protections for individual rights.”
But these two legal thinkers—likely southwest Asian immigrants and possessing short attention spans for American laws and freedoms—have an extra-regulatory dis-innovation to propose for bypassing such protections—or perhaps they are demonstrating a shyster-esque way of misapplying constitutional law to achieve their desired ends.
These two note:
Qualified immunity is a doctrine that protects government officials from liability for allegedly violating an individual’s constitutional rights, when the officials’ actions do not clearly violate the law.
The theory is that state officials should not be monetarily liable unless a ‘reasonable person would have known’ that their conduct was unconstitutional.
The concept of what is being proposed is wrong in more ways than one, although qualified immunity may very well divide progressives from conservatives.
Reason‘s Damon Root wrote in 2020 on his way to calling for the doctrine to be abolished:
Something has gone seriously wrong in our criminal justice system when the federal courts are running this kind of interference on behalf of blatantly unconstitutional police actions.
But Krishnamurthi and Salib are obviously blinded by the opportunity they see here.
They wrongheadedly insist:
Even if Bruen is eventually read to reject most or all new laws specifically aimed at regulating guns, states may retain significant power to decide who is and is not armed.
That power will be effectuated via state law enforcement officers, pursuant to state law or traditional police powers, and enacted via case-by-case disarmaments.
Under current qualified immunity doctrine, such disarmaments would enjoy broad protection against monetary liability.
Basically, they propose that police seize guns “from whomever their Spidey senses tell them ought not be allowed to own firearms.” Those on the receiving end of gun grabs could pursue expensive litigation that might win them back their property but is otherwise unlikely to result in consequences for misbehaving officers, even when the courts conclude that the Second Amendment has been violated.
The two falsely see “an opportunity to squeeze conservatives between a rock and a hard place.” Bottom line: This is another attempt to take our weapons despite the Constitution and despite the Second Amendment.
Going forward, the doctrine will either provide cover for left-leaning states to disarm potentially dangerous citizens—even in tension with Second Amendment principles—or it will be weakened, reinvigorating civil liability as a mechanism for policing the police.
Encouraging politicians already embracing authoritarianism to attack protected rights is dangerous and deeply irresponsible. But there is hope since Krishnamurthi’s and Salib’s clever gambit was anticipated.
Robert Leider, assistant professor at George Mason University’s Antonin Scalia Law School, pointed out earlier this year when officials proposed anti-gun policies they knew would not stand scrutiny with the idea of daring people to risk arrest and litigation:
The Supreme Court has never said that qualified immunity protects state actors who intentionally seek to violate a recognized constitutional right simply because the legal artifice they employ has not been the subject of a prior court decision. Denying qualified immunity in these cases could mitigate much of the resistance to Bruen.
Law enforcement agencies are often regulated by their insurance providers, and insurance providers may deny coverage to jurisdictions engaged in willful court-defiant behavior.
Insurance companies seem unlikely saviors from government functionaries running roughshod over constitutional rights. But perhaps this will be the tool to thwart law professors hoping to bypass legal protections for liberty.
Final thoughts: The notion of promoting impunity for violating rights as a policy tool—what could possibly go wrong?
I wonder what it is that these two Law professors fail to understand about “shall not be infringed.”
Now may be an appropriate time to quote George Bernard Shaw: ‘Those who can, do; those who can’t, teach.”
