Full Transcript - Qualified Immunity As Gun Control
The gun control movement is going super-villain in a soon to be published article written for the Notre Dame Law Review advocating a de jure abuse of the police powers by utilizing a de facto abuse of the police powers to use the State’s monopoly on the use of force to violate your constitutionally protected, natural and individual right to keep and bear arms. In an upcoming article called “Qualified Immunity as Gun Control” (Which I am going to assume was a rip-off of my article “Gun Rights as Criminal Justice Reform” even though I have nothing to base that assumption on and it’s almost certainly not correct, that’s not gonna stop me from assuming these guys are a could title stealing sons of bitches…)
Law professors Guha Krishnamurthi & Peter N. Salib make one of the most evil and admittedly most brilliant calls ever to further their gun control agenda by using the decidedly unconstitutional and un-American doctrine of qualified immunity, dreamt up by the Supreme Court in 1982 (that’s the evil bit) as well as employing the conservative veneration for police to commit what they very openly admit would be a flagrant and intentional violation of our individual liberties. (That’s the brilliant bit). Their article begins with:
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.
Even though this article is in many sense incredibly clever, one thing we can already see it demonstrating is a seemingly inescapable attribute of any call for gun control and that is that they always foster a general air of ignorance that is impossible to ignore, and this article has got gun control stupid in spades.
He claims that before Bruen gun control laws were challenged by applying a means-ends test known as judicial scrutiny. Judicial Scrutiny is a complex and complicated topic rooted in fourteenth amendment jurisprudence. If you guys would be interested in a future video focusing on the history and purpose of judicial scrutiny let me know in the comments. For now it should suffice to say that when the constitutionality of a law is challenged the court applies one of three standards of scrutiny to analyze the law and its effects.
The highest standard is called strict scrutiny, below that is intermediate scrutiny and the lowest standard is called rational basis review.
Strict scrutiny is applied when the law being challenged discriminates against a suspect classification or burdens a fundamental right. Intermediate scrutiny applies to quasi-suspect classifications and unenumerated rights. These tiers constitute what is known as heightened scrutiny because with strict and intermediate scrutiny the burden of proof rests with the government.
Rational basis review determines the constitutionality of any statute or ordinance not otherwise subject to heightened scrutiny. Under rational basis review the Court simply asks whether the law in question is rationally related to a legitimate government interest (including entirely hypothetical speculations about the mere possibility of a potential government interest). Here the burden of proof lies with the challenger to demonstrate the law serves no conceivable government interest.
Later in the article the authors elaborate on their understanding of gun control and judicial scrutiny:
After Heller and McDonald, the Courts reviewed gun control laws under the trans-substantive constitutional standards of strict and intermediate scrutiny… Under both highly tailored laws that stood to significantly reduce loss of life and limb would be upheld. This means that, as death rates from gun homicides and suicides rose, regulators could try new approaches to saving lives.
It is incredible just how many things these two law professors got wrong in such a short passage. First of all, there isn’t such a thing as “trans-substantive constitutional standards.” For this to be you have to accept the idea that a single law can be applied to two entirely contradictory standards at the same time. But this article has much bigger problems than his inability to delineate between the two standards that he claims are relevant to this case. That bigger problem is that neither of these standards are relevant.
Despite the author’s repeated claims that the standard approach before Bruen was a means-ends test consistent with heightened scrutiny, rooted in Heller’s precedent—That claim is a fantasy.
In the majority opinion, penned by Justice Scalia as well as the lone dissent of Justice Breyer, both judges explicitly state that the Court chose to decline Dick Heller’s request to apply a strict scrutiny standard. In fact, both Justices point out that the majority chose not to apply any standard of heightened scrutiny and this was done deliberately.
Bruen changed nothing, it merely corrected the often very intentional misinterpretation of the Heller and McDonald precedent that was creating a split in the lower courts.
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.
I admittedly find myself still struggling to decide whether the most striking part of this article is the rank hypocrisy, or the article’s willingness to take every gun control argument and say the quiet part loud and the loud part quiet.
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.
This was a real eye-opener for me. For a long time I had been under the distinct impression that there were two views on the existence of qualified immunity. That being the more libertarian view which I ascribe to that qualified immunity is a flagrant violation of civil liberties that has no constitutional, legal or moral justification and as such should not exist; and the more conservative view that says qualified immunity is an important legal doctrine to have in place to make sure that the police can continue to do their jobs without being burdened by constantly facing civil liability for doing so. While I strongly disagree with the latter view, at least I can understand the underlying logic.
It’s hard to believe there is a third group of people who believe that qualified immunity is akin to Schrodinger’s cat which exists in a state of superposition where it is both moral and immoral until the moment we open the hypothetical box and measure this doctrine based on whom this policy harms at the moment of measurement.
Even if we set aside the morally inexcusable position being taken that anyone who has a difference of opinion with gun control advocates deserves to be robbed of their civil liberties, the complete lack of sense remains in the glaringly obvious fact that the civil libertarians who are committed to ending qualified immunity are also committed to protecting gun rights in equal measure. Advocating unlawful gun confiscation necessarily harms their allies in a fight to end qualified immunity who, even by their own twisted logic, have not committed the cardinal sin of disagreeing with the left about their personal opinions of public policy.
Not to mention the fact that a 2020 survey conducted by the Pew Research Center found that nearly half of self-identified Republicans (45% to be exact) say:
Civilians need to have the power to sue police officers to hold them accountable for misconduct and excessive use of force, even if that makes the officers’ jobs more difficult.
How about the 59% of liberals and democrats who, according to a Pew Research poll say they personally own at least one firearm.
These are significant sections of the population that are already committed allies in the fight to end qualified immunity who would be substantially harmed through the employment of this policy that says “gun owners deserved to be robbed of their civil liberties because they oppose an end to qualified immunity.”
And ideologically, 28% of liberals who believe the right to carry a gun in public for lawful purposes is an individual right— Not a carrot to attach to the end of your stick of social engineering.
My feelings towards this proposal are very similar to the way I felt about SB8 (This was the Texas Fetal Heartbeat Bill that I discussed in several past videos and articles) that, while I wholly disagree with the objective of this proposal, it has a certain evil brilliance I can’t help but admire… just a little bit.
I am amazed at just how often I will see a vehicle with the thin blue line bumper sticker and on that same vehicle they will have the Come and take it sticker
and I’m left shaking my head, quietly asking myself “who the hell do you think is going to come and take it….” The obvious answer is that it will be the thin blue line people. And so, despite the reprehensible nature of supporting a legal doctrine you recognize is intrinsically unjust, as long as it is used to harm people you disagree with-- I think it only fair to give the authors of this article credit for such a clever use of Saul Alinsky’s rule of always holding the other side to their own standards. Though this admiration is ever fleeting as soon as I continue reading.
The net result, many worry, is that modern lawmakers will be shackled to the regulations of the distant past. They will be able to restrict gun ownership and use more or less exclusively as they were restricted in the 18th century. And, since the 18th century was an era of single-shot muzzle loaders, fewer gun homicides, and lower state capacity, the list of permissible restrictions will be short, indeed. Thus, many have predicted that Bruen will hamstring lawmakers’ ability to prevent even the most predictable modern tragedies.
This seems to reinvigorate a particular gun control fallacy I had really begun to believe they had finally cast out for the sheer imbecility of the thing. That the Second Amendment may have been a valid right to protect back in 1791 when the second amendment was given legal force, but even if that were true, by now, it has become a relic; that makes no sense to continue to recognize.
Because obviously natural rights are contingent upon artificial circumstances. As though our civil liberties should get the same treatment we give people who continue to wear white after labor day.
Furthermore, our rights are also not contingent on technology. The second amendment does not protect a right to own single shot, smooth bore, muzzle loading muskets. It protects the right to keep and bear arms. In 1791 that meant muskets because they were a common firearm of their time. Today it protects AR-15’s because they are a common firearm for our times. And in a few years it will protect the Moonraker Laser Rifle, because they are awesome and are obviously the gun of the future.
But I digress…
After all, would anyone argue that your individual right to be free from unreasonable searches and seizures is hopelessly outdated because back then they were searching carriages, but today they are searching the technologically advanced means of conveyance that is the modern automobile? After all, internal combustion engines go much faster, use energy far more efficiently than the animal who literally put the “horse” in “horse power”— And modern mass production’s easy customization options and endless supply of replaceable parts on demand create all sorts of opportunities for car owners to create hiding spots where a person could stash their gun or other contraband.
What this article gets absolutely right is the part about “the list of permissible restrictions will be short, indeed. Thus, many have predicted that Bruen will hamstring lawmakers.”
That’s the fucking point. It has nothing to do with magazine capacity or the rate of homicides, how anyone could draw that distinction is baffling. The reason so few restrictions can be found when Bruen’s framework of text, history and tradition is applied is because at that time people still understood what an individual right was. More importantly, they understood the vast difference between the conception of negative liberties employed in the bill of rights, as opposed to people today who have erroneously come to assume that because they prefer a positive rights model in which all we have exists solely as a gift to the people by government, contingent on good behavior; that must be what we have and what we have always had. But that is simply not the case. Because first comes rights, then comes government; For the express purpose of protecting those rights.
Additionally, the second amendment has nothing to do with the conditions under which a citizen may own guns or what kinds of guns an individual may own. This is because the Constitution is not the law that governs us, it is the law that governs those who govern us.
We have put the exercise of this right completely outside the scope of Congresses’ control and beyond restriction, limitation or regulation through any valid employment of the democratic process.
The reason is qualified immunity. Qualified immunity is a doctrine shielding state officers from monetary liability for violating constitutional rights. It operates as a kind of “clear warning” rule. Under qualified immunity, a plaintiff may not recover damages from a state official unless a prior, authoritative judicial holding “clearly established” that the officer’s conduct was unconstitutional.
The audacity of this statement would be genuinely impressive if it weren’t so completely infuriating. They have dropped all pretense of using the police as some kind of de facto regulation that merely gives them the power to “regulate” guns to the same degree they want you to believe they were able to do prior to the Bruen decision. This is a complete mask-off recognition that what they want to do to you is an unquestionable violation of your rights. They understand that what they are doing is advocating for a police state where the government has a free hand to flagrantly violate our individual rights.
They follow this up by citing a particular criminal law and state regulation under Texas law that are relevant to a gun control case out of the fifth circuit that they are using as the prime example of how Bruen is ruining their ability to further infringe our rights—However, a simple reading of their explanation of the nature and meaning of these laws, followed by a textual analysis of the laws themselves will demonstrate their explanation is so disastrously beyond what anyone could reasonably infer:
The Fifth Circuit case arose in Texas. Under Tex. Code Crim. Proc. Art. 14.03 and Texas Gov’t Code § 411.207, for example, a police officer may disarm any individual when the officer “reasonably believes it is necessary for the protection of the [individual], officer, or another individual.”
~United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023).
How does this article’s interpretation stack up against the text of the law itself?.
TX Code Crim Pro art 14.03 (2021)
Any peace officer may arrest, without warrant:
(h)(1) A peace officer who is acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is necessary for the protection of the person, officer, or another individual. The peace officer shall return the handgun to the person before discharging the person from the scene if the officer determines that the person is not a threat to the officer, person, or another individual and if the person has not committed a violation that results in the arrest of the person.
(2) A peace officer who is acting in the lawful discharge of the officer's official duties may temporarily disarm a person when the person enters a nonpublic, secure portion of a law enforcement facility, if the law enforcement agency provides a gun locker or other secure area where the peace officer can secure the person's handgun. The peace officer shall secure the handgun in the locker or other secure area and shall return the handgun to the person immediately after the person leaves the nonpublic, secure portion of the law enforcement facility.
(3) For purposes of this subsection, "law enforcement facility" and "nonpublic, secure portion of a law enforcement facility" have the meanings assigned by Section 411.207, Government Code.
The plain meaning of this law is crystal clear. An officer may disarm a citizen during certain periods of detainment, but they must return the firearm to the person before the end of the encounter. What they are suggesting is not a creative interpretation of this law to suit their designs. It’s theft and it constitutes a federal crime under 18 USC §§ 842(h) and 922(j).
It speaks volumes about the character of leftist gun control advocates and criminal justice reformers who will one day decry police corruption and abuse, as well as the often cavalier attitude of many police officers that believe themselves to be above the law-- and who flagrantly violate the oath they take as public servants to preserve, protect and defend the Constitution of the United States; and the next day actively encourage those very same police to engage in those very same reprehensible behaviors when dealing with people who have broken no law. One has to ask—If it neither breaks my leg, nor picks my pocket, what business is it of mine?
What kind of person can recognize that even in the most ideal circumstances we cannot count on the police to be able to protect individuals from harm, because all too often it is the police who are causing the harm we need protection from. While also insisting that people be left completely helpless in the face of such harm and that those who refuse to voluntarily comply with their demands for an entirely helpless population would send the very people causing that harm to enforce, through violence coercion and deception, their own victims complete helplessness.
That is like telling a guy being released from jail for assaulting his wife “If you go back home don’t bother looking for any of the guns you kept in your house. We confiscated them all when we arrested you to make sure you can never use them to threaten or harm your wife.”
All that domestic abuser hears is “Your wife is home alone and completely helpless. We made sure she has no useful means of defending herself against you, should you feel like victimizing her again at any point.”
Gun rights advocates, who lean conservative, would doubtless decry this state of affairs as lawless. Liberals and civil libertarians have long said the same about qualified immunity, albeit as applied to violations of other rights. Their objections have largely been to police’s repeated evasion of liability for using, in their view, unconstitutionally excessive force.
IN other words, anyone who dares have a different opinion than the author of this article deserves whatever violence may come to their rights, their life or their property.
If police begin to aggressively disarm citizens under the aegis of qualified immunity, its conservative leaning defenders may worry less about meritless claims. Perhaps they will ally with liberals and civil libertarians in arguing for the qualified immunity’s abolition. Or perhaps not. Either way, the Bruen decision will have scrambled qualified immunity’s political valence. 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.
This is truly sick and perverse. I have been very upfront, both in this article and in my articles and videos generally, that I support the complete abolishment of qualified immunity and, in fact, I remain committed to the total abolition of public policing that the left initially supported for a moment back in 2020; until they realized abolishing the police would require them to take personal responsibility for their defense of themselves. If there’s one thing we know leftists hate it is personal responsibility and a requirement to do for themselves anything that they believe they are entitled to have the government do for them.
But if our only options are to either throw in one’s support with conservatives who want to put their faith in police as they exist now and who see no issue with the above-the-law protections police receive under the doctrine of qualified immunity—or with the liberals who tend to share in a desire for radical criminal justice reform, knowing that they seem to take the same cavalier attitude to enforcing compliance from conservatives and gun rights supporters that slave masters seemed to have when it came to enforcing compliance among their slaves, I’ll take the conservative inequity over the liberal inequity every single time.