If you looked closely enough, Voisine v. United States was always a gun case. Although it came to the Supreme Court wrapped in the technical language of criminal intent, Voisine still had the Second Amendment at its heart. The justices tried to shear off the constitutional question when they agreed to hear the case, refusing to consider whether a federal law barring domestic abusers from owning guns could violate their right “to keep and bear arms.” But toward the end of arguments on Monday, Justice Clarence Thomas broke his decadelong silence on the bench to speak up for gun rights. His sharp questions raised the possibility that Thomas could fill the conservative vacuum created when Justice Antonin Scalia died—and make a coherent case for his own unique brand of deeply principled, exceedingly eccentric constitutional conservatism.
Voisine centers around the Lautenberg Amendment, a 1996 law designed to keep deadly weapons out of abusers’ hands. The statute forbids any person “who has been convicted in any court of a misdemeanor crime of domestic violence” from possessing “any firearm or ammunition.” It defines domestic violence as “the use or attempted use of physical force” against an intimate partner. The data justifying the law are overwhelming: In homes where domestic violence occurs, the presence of a gun increases the risk of homicide by 600 percent, and between 60 and 70 percent of domestic disputes that end in the death of an intimate partner involve a firearm. It’s hard to get a gun regulation through Congress. There’s a reason this one passed.
At first blush, Stephen Voisine’s crime would seem to fit this definition quite comfortably. In 2003, he was convicted of misdemeanor assault under Maine law after slapping his girlfriend while intoxicated. (“This was not the first time it happen[ed],” she told the police.) He was convicted of the same crime in 2005. Four years later, federal agents arrested Voisine on an accurate tip that he had illegally shot a bald eagle with a rifle. Voisine turned over his gun, and federal authorities charged him with illegally possessing a firearm in contravention of the Lautenberg Amendment.
One problem: Voisine was charged with “intentionally, knowingly, or recklessly” harming his girlfriend. Here’s where the case gets weird. These adverbs point to the statute’s mens rea—the defendant’s state of mind when committing the crime. Intentionally means the defendant committed the crime on purpose, hoping for a certain result. Knowingly means he was practically certain that his crime would lead to a certain result. Recklessly means he consciously disregarded the substantial risk posed by his actions. If you run over a person with your car because you hate him, you killed him intentionally or knowingly. If you run over a person while driving drunk, you probably killed him recklessly.
Voisine argues that domestic assaults committed recklessly—but not knowingly or intentionally—don’t qualify as a “crime of domestic violence” under the Lautenberg Amendment. He insists that reckless domestic assaults do not involve the “use of physical force” as defined by the law. And because he was charged under a statute that included recklessness, the government has no authority to take away his gun.
In the lower courts, Voisine also argued that the Lautenberg Amendment unlawfully infringed upon the constitutional right to bear arms—at least as applied to reckless conduct. The Supreme Court stripped away that issue when it took the case. But a quick look at the amicus briefs in Voisine demonstrates just how large the gun question looms. On one side, we have the Gun Owners Foundation, Gun Owners of America, Inc., Gun Owners of California; on another, we have Everytown for Gun Safety, the Brady Center to Prevent Gun Violence, and the Law Center to Prevent Gun Violence. You can probably guess which side is which.
When Virginia Villa approaches the bench to defend Voisine, she seems to have a tough road ahead of her: She needs to explain why a crime of reckless domestic assault is not a “use of force.” Villa attempts to walk the justices through a series of hypotheticals and analogies, all of which fall flat. After a few minutes, she bumps into the court’s fiercest tag team, Justices Sonia Sotomayor and Elena Kagan, who are visibly skeptical of Villa’s argument.
“You’re relying primarily on the language ‘use of physical force’ and what it means—the ordinary meaning of those words,” Kagan chirps. “Is that correct?”
Villa agrees. Kagan responds: So why can’t “reckless behavior” be a “use of force”? “See if you can give me an example,” she continues, “which would be reckless behavior under a battery statute but which you think would not involve the use of force.”
After a brief, painful pause, Villa finds an answer.
“I had a client once,” she tells Kagan, “who pled guilty to a misdemeanor where he was actually running away from a guy who was trying to beat him up. And he closed the door very forcefully behind him and caught the guy’s fingers in the door.”
“You just said it!” Kagan says, raising her eyebrows and cocking her head in a way that signals she realizes she is dealing with an inferior intellect. “He ‘closed the door very forcefully behind him.’ That’s the use of physical force!”
Villa appears confused.
“It was the use of physical force,” she concedes. “But what he explained is that, ‘I closed the door. The door hit the guy. I didn’t mean to hit the guy. I knew he was behind me.’ ”
By this point, Kagan looks legitimately puzzled, possibly wondering why Villa is making her argument for her, apparently without knowing it.
“I feel like I’m repeating myself a little,” Kagan responds in her best patient teacher voice, “so I’ll just try it one more time. The language is just ‘the use of force.’ And what we are trying to decide is whether that includes use of force that indeed is carried out without an intent to harm, but is carried out with an understanding that there is a risk of harm. That’s what recklessness is. And, you know … slamming a door when somebody’s hand is in the vicinity” would seem to obviously involve both “the requisite risk” and “the use of physical force.”
It’s not really clicking with poor Villa, so Sotomayor takes a stab.
“Don’t you have to look at this in the domestic violence context?” she asks Villa, since the law specifically covers domestic violence offenses. “Isn’t it prototypical in many of these domestic violence cases where much of the violence employed is not direct violence,” such as hitting someone, but “reckless conduct that leads to violence, either from drunkenness or from other conditions?”
Villa gives a mangled, rather evasive answer, pushing Justice Ruth Bader Ginsburg to step in with a reminder that maybe narrowing the Lautenberg Amendment’s scope would allow many more batterers to legally obtain firearms.
“The government tells us that heavy consequences ride on this,” she says, “that many domestic violence situations would not be subject to prosecution under this statute on your read, if you require knowing or intentional, rather than reckless, state of mind.” And she’s right: A ruling for Voisine would gut the Lautenberg Amendment in at least 36 jurisdictions, allowing convicted domestic abusers to purchase firearms.
When Ilana Eisenstein, assistant to the solicitor general, steps up to the lectern, the moral force of Ginsburg’s comment seems to push her along smoothly to the finish line. Eisenstein gets some pushback from Chief Justice John Roberts and Justice Anthony Kennedy, who fear that counting reckless conduct as “use of physical force” would unduly broaden the Lautenberg Amendment, giving prosecutors too much discretion. But the law-and-order Alito—who is more forgiving of broad federal criminal statutes than any of his colleagues—has clearly sided against Voisine. Presuming the four liberals are with Alito, Eisenstein appeared to have her case in the bag.
After fielding several minutes’ worth of questions, Eisenstein delivers a closing monologue about 10 minutes before her time is up. She concludes, then pauses, allowing for any final inquiries.
“If there are no further questions,” she says, and begins to gather her materials. At that point, Thomas abruptly leans forward in his chair.
“Ms. Eisenstein, one question,” he says, breaking his 10-year silence on the bench. A ripple of shock passes through the courtroom. Audience members sit up straight. A few spectators gasp. Everyone in the press section uncaps their pens and begins to scribble furiously. Chief Justice Roberts turns to look at Thomas in a fleeting moment of surprise. The other justices display no astonishment at all.
“This is a misdemeanor violation,” Thomas continues. “It suspends a constitutional right. Can you give me another area where a misdemeanor suspends a constitutional right?”
Eisenstein—who, to her great credit, does not miss a beat—asks the justice to clarify.
“You’re saying,” Thomas responds, “that recklessness is sufficient to trigger a misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right. Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?”
Thomas gives the example of a publisher who is “reckless about the use of children in what could be indecent displays” and is convicted of a misdemeanor. “Could you suspend that publisher’s right to ever publish again?” The answer is no, of course—so “how is that different from suspending your Second Amendment right?”
Eisenstein tries to explain why guns are different from expression: Myriad studies prove that people who have battered their partners at least once are vastly more likely to kill them in the future if they own firearms. But Thomas doesn’t buy it: He points out that a defendant need not have used a gun against a family member to lose his gun rights indefinitely.
Justice Stephen Breyer—who, up to now, has not asked a question— reframes Thomas’ point as a warning against interpreting the Lautenberg Amendment so broadly that it encroaches upon the Second Amendment. If the court rules against Voisine, he notes, it will be affirming a lifetime ban on his right to own a gun. And at that point, the court might have to decide whether a lifetime ban for domestic abusers is a “reasonable regulation of guns” under the Second Amendment. Thus, Voisine is actually arguing from the doctrine of constitutional avoidance—the principle that, if the court can decide a case without reaching a constitutional question, it should.
“If this does raise the constitutional question,” Breyer says, “so be it. And then we will, in a future case,” answer that question. But “we don’t have to decide it here.”
“That’s correct, your honor,” says a very relieved Eisenstein, who seems all too aware that the gentle justice has just rescued her from the lion’s den. She takes her seat, and everyone in the courtroom looks at each other in a stunned hush.
So: Why did Thomas choose Voisine, of all cases, to make his dramatic comeback as an active participant in oral arguments? It is almost impossible to avoid the conclusion that Scalia’s death played some role in his decision. Yes, Thomas is a Second Amendment absolutist with an alarmingly expansive view of the right to bear arms. But he has sat through plenty of other cases that present issues near and dear to his heart—gay rights (very bad), abortion (extremely bad), affirmative action (the worst)—without piping up. Now, with Scalia gone, it falls on Thomas to lob the verbal bombs that Scalia would have relished throwing. It is probably not a coincidence that Thomas broke his silence during the court’s first sitting after the death of his closest ideological ally on the court.
Whatever his motivation, Thomas did the court a great favor by rejoining the hot bench. The justice has fascinating, idiosyncratic constitutional views that don’t fit neatly into our partisan framework. He is less political and more consistent than Scalia, willing to follow his principles even when they lead him to, say, block the prosecution of medical marijuana patients. And his questions (on Monday and in the past) are often pointed and insightful, not the acid-coated poison pills for which Scalia was famous. Thomas may well still lose Voisine. But his colloquy with Eisenstein hinted that the justice may finally be willing to play ball—to lend his voice to a court that has placed itself at the center of American life.