Qualified Immunity as Gun Control

Notre Dame Law Review Reflection (forthcoming 2023)

U of Houston Law Center No. 2023-A-8

18 Pages Posted: 18 Jul 2023 Last revised: 26 Oct 2023

See all articles by Guha Krishnamurthi

Guha Krishnamurthi

University of Maryland Francis King Carey School of Law

Peter Salib

University of Houston Law Center

Date Written: July 5, 2023


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.

Keywords: qualified immunity, gun control, Second Amendment, firearms

JEL Classification: K10, K14, K19, K40, K42,

Suggested Citation

Krishnamurthi, Guha and Salib, Peter, Qualified Immunity as Gun Control (July 5, 2023). Notre Dame Law Review Reflection (forthcoming 2023), U of Houston Law Center No. 2023-A-8, Available at SSRN: https://ssrn.com/abstract=4500816

Guha Krishnamurthi (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 W. Baltimore Street
Baltimore, MD 21201

Peter Salib

University of Houston Law Center ( email )

4104 Martin Luther King Blvd.
Houston, TX 77204
United States

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