I know! All those editorials and op-eds about prosecutorial misconduct, the need for reform, the decades of innocent people in prison, right out the window. The New York Times just found religion, and it’s the religion of trusting prosecutors.
In dissent, Justice Clarence Thomas complained that the majority was treating the Second Amendment right to own a gun “cavalierly.” He warned that the “reckless” standard was so easy to meet that even accidental conduct could lead to a lifetime ban on gun rights. But prosecutors are not going after accidents. (Emphasis added.)
Whew. Why didn’t anybody tell me that we had solved the pervasive, systemic problems with the criminal justice system that caused the Times to spill a million words? Of course, this great news doesn’t arise from just any concern, but one that the Times finds particularly “deadly,” the “mix of guns and domestic violence.”
Congress saw clearly that domestic violence and guns were a deadly mix, and passed, with overwhelming bipartisan support, the Lautenberg Amendment, which barred people convicted of misdemeanor domestic abuse from buying or owning a gun or ammunition. (Those convicted of felony domestic abuse were already subject to a gun ban under federal law.) As one senator said during debate over the bill, all too often “the only difference between a battered woman and a dead woman is the presence of a gun.”
Or, as another senator said during debate* (because, you know, it was a debate), “or cancer. Or a car accident. Or heart disease. Or the thousand other things that kill people.”
The Times was, of course, referring to the Supreme Court’s ruling in Voisine, applauded under the dual sacred rubrics of gun control and domestic violence. The majority held that the Lautenberg amendment was extended from intentional conduct of domestic violence to reckless conduct, and serves to preclude the exercise of a constitutional right by the reckless defendant.
Notably, the Times not only cherry-picked its smack to Justice Thomas, but didn’t even mention that Justice Sotomayor joined in most of his dissent. But then, that wouldn’t have made their editorial opinion nearly as easy to appear justified.
But Congress knew that state laws like Maine’s existed when it passed the ban. As Justice Elena Kagan wrote in the majority opinion, the federal firearms restriction was clearly intended to cover both reckless and intentional crimes of domestic violence under state assault laws.
Clearly? Well, that settles it. Provided you don’t read footnote 8 in the Supreme Court’s Castleman opinion.
We held in Leocal that “ ‘use’ requires active employment,” rather “than negligent or merely accidental conduct.” 543 U. S., at 9. Although Leocal reserved the question whether a reckless application of force could constitute a “use” of force, id., at 13, the Courts of Appeals have almost uniformly held that recklessness is not sufficient. See United States v. Palomino Garcia, 606 F. 3d 1317, 1335–1336 (CA11 2010); Jimenez-Gonzalez v. Mukasey, 548 F. 3d 557, 560 (CA7 2008); United States v. Zuniga-Soto, 527 F. 3d 1110, 1124 (CA10 2008); United States v. Torres-Villalobos, 487 F. 3d 607, 615–616 (CA8 2007); United States v. Portela, 469 F. 3d 496, 499 (CA6 2006); Fernandez-Ruiz v. Gonzales, 466 F. 3d 1121, 1127–1132 (CA9 2006) (en banc); Garcia v. Gonzales, 455 F. 3d 465, 468–469 (CA4 2006); Oyebanji v. Gonzales, 418 F. 3d 260, 263–265 (CA3 2005) (Alito, J.); Jobson v. Ashcroft, 326 F. 3d 367, 373 (CA2 2003); United States v. Chapa-Garza, 243 F. 3d 921, 926 (CA5 2001). But see United States v. Booker, 644 F. 3d 12, 19–20 (CA1 2011) (noting that the First Circuit had not resolved the recklessness issue under Leocal, but declining to extend Leocal’s analysis to §922(g)(9)).
Yes, the shifting sands of “clearly” can be a bitch. And so too that damn empathetic Latina, whose name shall go unmentioned. And so too the shifting sands of empathy, as the Times’ hatred of the Second Amendment today changes to hatred of another constitutional right, voting for example, which can be stripped for life by dint of a reckless act. Still cool, guys? Sorry, but someone had to say it.
Beyond the Second Amendment conundrum, where hated rights engender an entirely different analysis than adored rights despite there being no ledge to prevent the slide down the slippery slope or distinction other than, “but it’s WRONG!!!,” there is one additional bit of wordsmithing performed by the artful dodgers at the Times. It’s the use of the phrase, “domestic violence.”
Like all really well-conceived propaganda phrases, it conjures up evil images as a substitute for the full panoply of conduct it covers. As the Supreme Court noted in Castleman, this time footnote 6:
The concurrence’s reliance on definitions of “domestic violence” in other statutory provisions, see post, at 8, and n. 7, is similarly unpersuasive. These other provisions show that when Congress wished to define “domestic violence” as a type of “violence” simpliciter, it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to.
In other words, the inclusion of the word “violence” doesn’t mean, you know, “violence.” As Congress gets to define its language any darn way it pleases, there is nothing to stop it from calling the stink eye at your spouse “domestic violence.” And that violence doesn’t mean, you know, violence, is “unpersuasive” as a reason to question whether it’s, you know, violence.
Similarly, the commonly understood and very scary words that are relied upon by those who care deeply about the “special” issue of domestic violence don’t get to dictate how state or local authorities define their offenses, or the mens rea required for conviction, or their courts’ interpretations of either. This leaves an awful lot of variables to shift with the sensibilities of local government, changing notions of the worst thing ever, and the relative values of evils that must be stopped as opposed to the constitutional rights forfeited in the process.
It’s not that the New York Times hates your right to vote. It doesn’t unless you’re voting for the wrong candidate. Or your right to free speech, unless you use it to say hateful things. It’s that the New York Times just fucking hates guns, and it pisses them off to no end that it’s in the Second Amendment and those bastards on the Supreme Court ruled the wrong way in Heller and McDonald.
They won’t be demanding the elimination of your right not to incriminate yourself upon conviction for a reckless misdemeanor. They just couldn’t come up with a principled way to justify their feelings about guns with everything else they’ve ever written about the Constitution. So when all else fails, they tell you to trust the prosecutor. What could possibly go wrong?
*I’m putting words into an unnamed senator’s mouth for the sole purpose of pointing out the silliness of the Times’ basing an argument on what an unnamed senator said during a debate.