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"Qualified immunity" as a tool for violating 2A rights?
A troubling law review article. Qualified immunity is the court-created doctrine that you can't sue in federal court, for a civil rights violation, unless the aspect of the right at issue is "clearly established" by court precedent. "Clearly established" is read very narrowly: it's not enough to say that something close to this factual situation has been ruled unconstitutional, it's got to be identical, or nearly so, and in some circuits, it's got to have been by the Supreme Court or this circuit. You can't sue after having been arrested because someone didn't like the look on your face unless the court has ruled on the same look on a person's face.
What the author suggests is, if you want confiscate a firearm, in violation of Heller, McDonald, and Bruen, just do it, and if the person sues, plead privilege immunity. I find it strange that he thinks qualified privilege is a conservative doctrine; no conservative legal-type I know supports it, and the big 1982 Supreme Court case on it had the then-liberal wing's support, while CJ Burger dissented, and the 1986 ruling got the votes of Stevens, Marshall, and Brennan.
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When challenged on the premise of their article I expect the authors will claim that they have qualified immunity from scrutiny on account of being Eminent Law Professors
…Get rid of ALL immunity. No prosecutor, judge , spousal, lawyer immunity or privilege ….all gone. Sue to your hearts content. While you’re at it, eliminate waiting periods and statutes of limitations. But, if a lawyer loses a case, he, or she, gets the same sentence as his client. That applies to prosecutors also. We’re gunna need a lot more prisons.
…Let us call it the Shysters full employment Act. The best idea since trial by ordeal.
Will Baude's papers on Codifier's Errors is interesting.