Should “Loopholing” Be Protected By Qualified Immunity?
Over at his generally gun-related blog, Standing His Ground, Professor Robert Leider has two interesting blog posts about state reactions to the Supreme Court’s decision in Bruen: some states are enacting or considering policies to broadly restrict the carrying of firearms in many public situations, notwithstanding Second Amendment doctrine.
In one post, Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules, Leider argues that some of these regimes are unconstitutional because of crucial exceptions that render them pretextual:
. . . [T]hese laws do not switch the property default rule for gun carrying by politically favored groups (e.g., retired and off-duty police). This shows that they are not actually making a generally applicable default rule that a person may not bring a gun onto another person’s property without express consent. Instead, these laws target gun carry by one group only: civilians without prior law enforcement experience. . . . When asked where a gun permit holder could carry his firearm under the new law, Gov. Kathy Hochul (D-NY) forthrightly answered “probably some streets.”
Because these laws are clearly a pretext, they are not a valid regulation of the right to bear arms.
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