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.