“Aw, come on, that was a love tap! Now put some ice on that while I go out and buy a Glock….”
Be honest, now: you thought I’d never finish this series, did you? (Part 1 was posted June 28.)
In Voisine v. United States, a 6-2 U.S. Supreme Court holding issued on June 27 approved extending a federal statute banning firearms possession by anyone convicted of a “misdemeanor crime of domestic violence” to include individuals who have “misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct.”
Justice Elena Kagan, writing for the majority, said that “the federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the ‘use…of physical force’ against a domestic relation. That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.”
The opinion isn’t remarkable, nor is it a significant attack on gun rights. The case is really about language, as so many Supreme Court cases are. From the opinion:
“Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly “use[s]” force, no less than one who carries out that same action knowingly or intentionally. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.”
The real question, from an ethical standpoint, is whether Congress can and should remove a citizen’s Second Amendment right based on a misdemeanor conviction for domestic abuse. Is that fair? Sure it is. It is already settled law that it is Constitutional to prevent convicted felons from owning guns, even if it was a non-violent felony. From an ethical public policy standpoint, why would it be overly restrictive to ban gun ownership from those who engage in a violent misdemeanor?
Writing in dissent, Justice Clarence Thomas, joined by Justice Sonia Sotomayor (of all people), rejected the majority’s “overly broad conception of a use of force.” In the view of the two dissenters, “the majority blurs the distinction between recklessness and intentional wrongdoing” and thereby does a grave injustice to criminal defendants.
The majority covers the legal logic of the decision; the ethics logic is simpler. How difficult is it not to physicality abuse a spouse to the extent that one is found guilty of breaking the law? It shouldn’t be hard. Nor do I weep for any degree of spouse-beater who is denied the right to purchase a gun. Good, I say to such a person. I don’t trust you, and I don’t trust your judgment. If having access to a gun was so important to you, you should have thought about that before you started knocking loved ones around. If the threat of losing gun rights makes hot-heads think twice before engaging in domestic violence, that’s good too.
Thomas went further than Sotomayor, resuming his persistent argument that the Second Amendment faces limitations that other rights do not, and thus is a “second class right.” No, it’s a special right, the only one that by its very nature gives a citizen an opportunity to harm other citizens. Certain restrictions follow from that distinction. The State should be able to declare that a citizen is too violent to be trusted with such a rights, as long as there is due process, unlike the proposed pre-crime legislation that prompted House Democrats supporting a no-fly list gun ban to threaten to hold their breath until they turned blue.
In support of his argument, Thomas employed a slippery slope argument: the federal statute in the case, he said,”is already very broad. It imposes a lifetime ban on gun ownership for a single intentional nonconsensual touching of a family member. A mother who slaps her 18-year-old son for talking back to her—an intentional use of force—could lose her right to bear arms forever if she is cited by the police under a local ordinance. The majority seeks to expand that already broad rule to any reckless physical injury or nonconsensual touch. I would not extend the statute into that constitutionally problematic territory.”
Using the statute that way, of course, would be the result poor prosecutorial discretion. Thomas knows that no law is free from anomalous circumstances that will result in injustice. The fact that simple parental discipline could result in a conviction that removed a Constitutional right would be a factor in discouraging prosecutors, judges and juries from allowing such a conviction to take place. Thomas’s hypothetical is a stretch.
Voisine v.United States isn’t so much an anti-gun rights decision as it is an anti-domestic abuse decision.
Ethics Alarms 
“Thomas’s hypothetical is a stretch.”
Yes, of course, but there are other cases that fit within this law but should not. A man in my county was convicted of misdemeanor domestic assault for fighting with his brother (both adults) at their parents’ home, nearly 30 years ago. The incident fit the statute definition of domestic assault since the two men were related and lived under the same roof. He pled guilty and paid a small fine. When this federal law was enacted the district attorney contacted him and others convicted of domestic violence assaults in our district after the domestic assault statutes were enacted in our state (early 1980s) to advise them they could no longer legally posses firearms. This guy had to quickly divest himself of an extensive firearms collection to avoid prosecution. The one arrest was the only adversarial contact he ever had with the criminal justice system. Such a penalty for a spouse beater or child abuser is one thing, but for two men swapping a few punches on the lawn it seems excessive. Since our state’s liberalizing of its criminal expungement laws a few years ago, I hope this man and others similarly situated may have found a remedy for this excess.
I know a guy who was brutally attacked by his wife with a baseball bat in a jealous drunk induced rage based on false innuendo, he took at least three major hits to his body one of which broke a couple of ribs, he hit her her only once time and temporarily knocked her out to stop the incident. There were multiple male and female witness to the event (I was one of them) and everyone’s testimonies told the same thing. The result was the girl didn’t have much of a trial she plea bargained down to a misdemeanor aggravated assault of some sort (even though he didn’t aggravate her, she just walked into the room and started swinging the bat based on someone else’s false innuendo), she got probation, and she was forced into rehab for alcohol abuse; the guy was actually convicted of domestic abuse based on unverifiable whining innuendo from his wife (the tear jerking whines to the jury were freaking unbelievable but you gotta believe everything the female “victim” says, right), even though there was absolutely no physical evidence to support her claims other than this single incident, even though there had never been any incidents of domestic abuse in his past, in fact he had absolutely no record of any police contact ever – she had a couple of drunk driving convictions.
He lost his firearm rights for protecting himself from a violent physical attack; guess what, she can still own a firearm. For him it was a blatantly sexist based travesty of justice and there is nothing he can do about it, he unsuccessfully tried to get it overturned multiple times, eventually he just gave up and moved away, I guess he had been smeared enough.
Sometimes the law doesn’t treat victims very equally, and sometimes who the real victim is is clouded.
This does beg the question of why stop at prohibiting them from possessing firearms.
Surely it would be appropriate public policy to prohibit such persons from marrying. Or to require them to register with a public registry of domestic violence offenders.
Unenforceable. There are people who should be stopped from having children, for similar reasons. Not enforceable.
Were not laws against same-sex marriage enforceable?
If so, how much more difficult to enforce laws prohibiting persons convicted of domestic violence from marrying?
No, they weren’t.
So how would a law prohibiting such persons from possessing firearms more enforceable than laws prohibiting such persons from marrying?
Michael,
With all due respect, your logic is sounding a bit like; if A + B = C and D + E = C the A + D = C.
No one has yet to explain how a law prohibiting persons convicted of misdemeanor domestic violence from marrying is somehow unenforceable.
Michael Ejercito said, “No one has yet to explain how a law prohibiting persons convicted of misdemeanor domestic violence from marrying is somehow unenforceable.”
That wasn’t my argument Michael.
I’m am curious; was that reply of yours supposed to be some sort of counter argument to my statement (that you replied to) that your logic is sounding a bit like; if A+B=C and D+E=C then A+D=C?
It was mine. People can cohabitate with anyone and be de facto married at will.
It could be easier to enforce if those convicted of domestic violence were required by law to wear some sort of special insignia while out in public.
Who would oppose such a law?
I would, just as I oppose the persecution of registered sex offenders.
Michael Ejercito said, “It could be easier to enforce if those convicted of domestic violence were required by law to wear some sort of special insignia while out in public.”
I guess it was inevitable that someone was going to go down that road in this discussion.
There is nothing wrong with being Jewish.
The same can not be accurately said about domestic violence.
How would you go about opposing such a law without being accused of taking the side of wife beaters?
So what exactly would prevent an overzealous anti-gun DA from deciding to prosecute such crimes in order to get more guns off the street? Of course, the motivation would be couched in different terms.
Not all trials would result in convictions, but i don’t see why you couldn’t see a large number of these injustices.
I can do better than that: I can see how thousands of laws could be used by over-zealous, unethical prosecutors to achieve particualr social agendas. here’s how the system works: the prosecutors get criticized, lose their jobs, and maybe the law is changed. Or it works, people stop hitting each other, and there are fewer domestic shootings.
Would you make the same case agains speed limits? Imagine cops strictly enforcing them as policy. Some laws are there as guidelines and warning as much as anything else.
So you’re saying it wouldn’t happen because prosecutors would be criticized and fired for aggressively pursuing domestic violence charges? Who would do the criticizing/firing? To your average Joe on the street, he hears about a prosecutor who relentlessly hounds every domestic violence charge and thinks, “Good! Let’s get all those wife-beaters in prison!” He wouldn’t have the same reaction to a cop who enforces the speed limit with an iron fist.
And I see this issue as much more under-handed than prosecutors trying to achieve social agendas using other archaic or overly broad laws. If you have a prosecutor who HATES animal abuse, and so puts the screws to every guy who leaves his dog in a hot dog house during the summer (or whatever generally accepted activity), then you have a prosecutor who is using the law the way it is supposed to but in an overzealous manner. The social engineering is obvious and can be judged accordingly.
As for your question about speed limits, I figure the difference is that speed limits are not vigorously enforced because it would presumably be less safe for people to be constantly monitoring their speed (and thus spending less time watching the road) to make sure they don’t go 0.2 mph over the limit, but that’s a tangent.
So you’re saying it wouldn’t happen because prosecutors would be criticized and fired for aggressively pursuing domestic violence charges?
Thomas’s hypothetical was treating corporal punishment as domestic abuse. So, yes.
Jack,
I think the biggest concern with regard to the slippery slope line of reasoning is that this is a lifetime ban on the purchase of a weapon based on the violation of a misdemeanor. I agree that demonstrating a propensity towards violence should be enough to limit or perhaps prohibit someone from owning a weapon, but a misdemeanor?
If a person is convicted or liable or perjury, should that result in the permanent suspension of their fifth amendment rights? I’m not aware of another example where the violation of a misdemeanor can trigger a lifetime suspension of any constitutional right. To me, that’s what makes this case particularly extraordinary.
Then again, considering that the gun questions wasn’t even before the court, that whole issue is moot, I suppose.
Glad you finally finished!
-Neil
Me too.
I think the lifetime ban is troubling for felons as well, and there should be a mechanism for an individual to petition for reinstatement after a certain amount of time.
The Constitution guarantees petitions for redress of grievances, including a petition for a pardon.
That’s there, but there is no formal process written into the law (in all states).
Oh boy! This is a complicated issue. Would “expressive violence” (i.e. calling your partner dumb and lazy) be prosecutable as domestic violence. It seems that if it is and a misdemeanor, a lifelong ban on gun ownership is a little excessive.