The Constitutional Right We Love To Hate

The case involved a double whammy. Domestic violence and the Second Amendment. Both involve sacred cow issues, either of which would have been sufficient to raise serious concerns that the politics behind the issue would spell disaster.  And here they were, together. What could possibly go wrong?

There was a time when there were questions raised as to why domestic violence should be treated differently than any other violence.  Violence is bad. Violence is criminal. Is there a reason why violence against a member of a household should be any worse than violence against a stranger?  But then the platitudes and tears became the arguments, and so the law was changed.

Domestic violence became a thing, separate and apart, because, well, it involved stories of husbands beating their wives, and men should never do that because the stories were terrible. The stories of men beating strangers weren’t great either, but that was compartmentalized in the tales of woe, so it was ignored. Like hate crimes, the conduct was the same. The harm was the same. The feelings were different. Burn the witch.

Add to that mess guns. The idea actually made greater sense when guns were introduced into the mix, as a gun in the house gave rise to a mechanism by which an outraged person, whether on impulse or by nature, could inflict far greater harm than he could with his hands. Sure, knives were still there, but you can’t stop everything. At least there would be no guns with which to kill in a moment of fury.

But while there is no right to beat your wife, there is a right to keep and bear arms. It’s just that it’s a right that people of a certain political persuasion really hate, and would go to extreme lengths to be rid of.  Stephen Voisine found himself at the crossroads of these issues.

In a 6-2 decision, the Supreme Court held that Voisine’s right under the Second Amendment was lost pursuant to 18 U. S. C. §922(g)(9), which precluded a person convicted of a misdemeanor domestic violence offense from possessing a firearm. The Supremes had already held that this was constitutional in the case of intentional domestic violence, but Voisine’s conviction* was for reckless conduct. The question was whether a person could lose a constitutional right because he made a very serious mistake.

The Court held he could, based primarily on a textualist reading of the statute.

Statutory text and background alike lead us to conclude that a reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9). Congress defined that phrase to include crimes that necessarily involve the “use . . . of physical force.” §921(a) (33)(A). Reckless assaults, no less than the knowing or intentional ones we addressed in Castleman, satisfy that definition. Further, Congress enacted §922(g)(9) in order to prohibit domestic abusers convicted under run-of-the-mill misdemeanor assault and battery laws from possessing guns. Because fully two-thirds of such state laws extend to recklessness, construing §922(g)(9) to exclude crimes committed with that state of mind would substantially undermine the provision’s design.

Nobody is going to cry for Stephen Voisine, right?  But as Jonathan Adler notes at Volokh Conspiracy, there was one really weird thing that prevents us from shrugging at the holding and walking away.  There was a two-person dissent, written by Justice Clarence Thomas and joined, in parts I and II, by Justice Sonia Sotomayor. When judges from opposite ends of the judicial spectrum join hands, you have to take notice.

Even assuming any doubt remains over the reading of “use of physical force,” the majority errs by reading the statute in a way that creates serious constitutional problems. The doctrine of constitutional avoidance “command[s] courts, when faced with two plausible constructions of a statute—one constitutional and the other unconstitutional—to choose the constitutional reading.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 213 (2009) (THOMAS, J., concurring in judgment in part and dissenting in part) (internal quotation marks omitted).

Section 922(g)(9) 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.

There are two issues raised by the dissent which explain the ironic duo.  First, that the majority ignored a basic tenet of statutory construction, reflecting a rather cavalier lack of respect for a constitutional right. Second, the sweep of its holding covers conduct that no one, except a person who really hates guns no matter what the circumstances, would believe was intended by Congress or should be constitutionally included as a trigger for the loss of a constitutional right.

But what’s the big deal? You hate guns and you hate domestic violence more than any other violence, right? Well, the big deal is that if they can do this for the Second Amendment, they can do it for the First as well. Or the Fourth, Fifth, Sixth, Seventh and Eighth. The Third, of course, is safe, as always.

While some will lead with their feelings, distinguishing constitutional rights based on which one they like and which one they hate, and believing the good rights and bad rights are immutable and sacrosanct, feelings are transitory and change with the tide.  When the dreaded right turns out to be the Fifth Amendment’s testimonial privilege, because some really bad dude with a prior domestic violence conviction will get away with killing his wife if he’s not compelled to offer evidence against himself, it can be done away with under the same rationale.

Thomas’ tacit complaint is that the Court treats the Second Amendment as a second class right. That may not bother you now, but when the same happens to another amendment, and that does bother you, this is how it happens.

* Adding insult to injury, the majority specifically notes that Voisine had a prior conviction for killing a bald eagle, which appears to be entirely gratuitous and included for the purpose of making Voisine as unsympathetic a litigant as possible. What sort of horrible person kills a bald eagle? The one whom you are about to rule against.

28 thoughts on “The Constitutional Right We Love To Hate

  1. Richard G. Kopf


    You ask: What horrible person kills a bald eagle?

    Given the chance, that would be me. The damn things are essentially vultures. A long time ago, Ben F. was right. Go turkeys.

    All the best.


    PS There are so many of these damn things that USF&W took them off the Endangered Species list.

          1. REvers

            They taste vaguely like squirrel. They’re good breaded and pan-fried, and served with biscuits and cream gravy.

  2. albeed

    The September 19, 2014 issue of Atlantic Monthly had the sub-headline

    “Research suggests that family violence is two to four times higher in the law-enforcement community than in the general population. So where’s the public outrage?”

    I wish the USSC would rule on these types of cases instead of bald eagle killers, but then, they would merely expose themselves as being the jokes that they are. What does LE do, turn in their firearms at the end of their shifts and pick them up ay the beginning?

      1. M. Kase

        While I don’t know first hand anyone who got nailed with, it’s a common safety brief in the military that any conviction for domestic violence leads to automatic separation on the basis of the Lautenberg Ammendment.

        1. SHG Post author

          What part of cops made you decide to reply that it was about the military? Are you firing on all cylinders?

          1. M. Kase

            Similar enough things, professions that (in America) require the carrying of arms, that the way the military deals with the problem might be germane.

  3. wilbur

    Quartering soldiers would inexorably lead to domestic violence, would it not? Or at least constructive domestic violence.
    That Third Amendment, gets no respect at all, I tell ya’.

  4. Ryan

    I got a guys felony indictment thrown out arguing thomas’ position awhile ago. .. now that argument is no go. Sotomayor wrote the opinion in US v. Castleman and put in footnote 8 that all circuits had held that recklessness was not sufficient to constitute a “use” under the statue, but reserved ruling on it in that case. The majority doesn’t even address footnote 8 from castleman. I don’t believe any circuit besides the first in this case had held recklessness as a mens Rea was sufficient.

      1. Ryan

        This case really was a problem of the Courts own making, they were the ones whose previous opinions strongly suggested recklessness != use. The circuits all ran with it. When faced with the fact that they had likely castrated an entire federal gun ban for domestic abusers, they chose to smear the defendant for using their own shoddy language against them.

          1. ryan

            “castrated an entire federal gun ban for domestic abusers ****if the State allowed their convictions to be based on a mens rea of recklessness****”

            Most states allow such a mens rea, many allow for less.

  5. pml

    In NY you can lose your right to own a firearm for several misdemeanor crimes that are not even domestic violence related, one of which is Jostling, a unique NYC kind of crime.

      1. pml

        Is that NYC? Because those of us upstate can get one fairly easy, except its not good in the city.

        But people up here consider NYC another world anyway.

          1. pml

            Now that’s cold man.

            It is an issue though that a lot of defense attorney’s don’t realize that there are many misdemeanor non-domestic violence convictions that bar you from owning a firearm in the state and don’t tell their clients.

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