Last year, Justice Clarence Thomas broke 10 years of silence during oral argument to decry the injustice of laws that deprive domestic abusers of their right to own firearms. Now, an influential judge on the 9th U.S. Circuit Court of Appeals has indicated he thinks Thomas has the right idea.
Judge Alex Kozinski seized the opportunity to opine on the Second Amendment in Fisher v. Kealoha. The defendant in Fisher argued that Hawaii’s strict gun laws, which bar people with misdemeanor convictions for domestic violence from owning firearms without receiving a gubernatorial pardon, violate the Second Amendment. In a 3–0 decision, the 9th Circuit disagreed, upholding the defendant’s conviction. But Kozinski wrote separately to “ruminate” on whether that outcome, while compelled by precedent, is really correct. “In other contexts, we don’t let constitutional rights hinge on unbounded discretion,” Kozinski asserted. “The time has come,” he concluded, “to treat the Second Amendment as a real right.”
If Thomas’ comment was disturbing on its own, Kozinski’s concurrence is a signal of a dangerous and wrongheaded trend. (In 2013, Kozinski’s 9th Circuit colleague, Judge Carlos Bea, also wrote that abusers do not lose their Second Amendment rights upon conviction.) It is galling to see these judges defend abusers’ rights to buy deadly weapons. It is also frustrating to see them focus on this particular right given their lack of sympathy for former convicts in other contexts. In the United States, millions of Americans are unable to cast ballots due to felony convictions. Guns kill. Voting hurts no one. And yet these judges evince far more solicitude for former convicts’ right to bear arms than their right to vote. To some conservatives, the Second Amendment is becoming the only amendment that matters. And its aggrandizement is coming at the expense of everyone else’s right to life and liberty.
It’s particularly odd to see these Second Amendment musings from Kozinski given his lack of sympathy for other constitutional rights. In a 2010 per curiam opinion that Kozinski joined, the 9th Circuit found police did not use excessive force in violation of the Fourth Amendment when they shot an unarmed victim of domestic violence with a stun gun after she made incidental contact with an officer. The panel wrote that “[t]he volatility of situations involving domestic violence” makes them “particularly dangerous,” adding: “When officers respond to a domestic abuse call, they understand that violence may be lurking and explode with little warning.” Thus, officers have extra freedom to use force on domestic violence calls. In that case, the panel also warned that abusers are especially dangerous, noting the frequency of “domestic violence deaths involving the use of a firearm.”
Kozinski’s Fisher concurrence, however, conveys no sympathy for the many people who might be murdered if their abusers were again allowed to purchase guns. Instead, he zeroes in on the Second Amendment rights of those very abusers, fretting that they are being eroded. In reality, this claim is laughable: The last several decades have brought a massive expansion of gun rights. Even former felons can bear arms in many states.
Meanwhile, 48 states and the District of Columbia impose some form of felon disenfranchisement, infringing upon that least dangerous but most fundamental of rights in a democracy: the right to vote. Four states—Florida, Kentucky, Iowa, and Virginia—have laws that permanently disenfranchise all former felons unless they receive clemency from the governor. Six other states permanently disenfranchise at least some classes of former felons. In Tennessee, former felons may be prohibited from having their voting rights restored if they have outstanding restitution, court costs, or child support payments. In Alabama, where those convicted of unspecified felonies involving “moral turpitude” are ineligible to vote, county registrars are left to decide whether a former felon falls into that vague category of ineligible voters.
Even in the 38 states that automatically restore voting rights upon completion of incarceration or supervised release, ex-offenders still encounter substantial barriers to casting ballots. These include the maze of laws and procedures required to re-register to vote, poor communication among state agencies, and the underfunding of state parole boards that are sometimes required to process applications for the restoration of rights. During the 2016 election, the Sentencing Project estimates felon disenfranchisement laws prohibited 6.1 million people from voting. These laws have a profound, disparate impact on racial minorities. One in 13 black Americans of voting age is disenfranchised. In four states, more than 1 in 5 black Americans does not have the right to vote due to a felony conviction.
There is great justification for disarming abusers, whose rate of recidivism, combined with the high likelihood that they will use guns against their partners if they own them, warrants the revocation of their Second Amendment rights. There is no similar government interest in keeping ex-offenders from voting. A vote, even in the hands of the most despicable criminal, cannot and will never cause an injury. Moreover, the right to vote is enshrined in all 50 state constitutions and protected by the U.S. Constitution. It is at least as “real” a right as any found in the Second Amendment.
But we have yet to hear grumblings from conservative judges about the injustice of felon disenfranchisement. In fact, after a 9th Circuit panel allowed a challenge to Washington state’s disenfranchisement law to proceed back in 2004, Kozinski argued that the panel’s decision should be reversed, insisting that felon disenfranchisement was a “widespread historical practice” and “explicitly endorsed by the text of the Fourteenth Amendment,” and he argued that “[o]nly a narrow subset of [disenfranchisement laws]—those enacted with an invidious, racially discriminatory purpose—is unconstitutional.”
Each of these points misses something critical. First, the 14th Amendment allows the disenfranchisement of felons only in cases of “rebellion, or other crime,” indicating that the punishment was intended for crimes of disloyalty to the United States. (It was adopted in the aftermath of the Civil War, when many Confederate leaders were stripped of their voting rights.) Second, the definition of “felony” has vastly expanded over time, a fact that Kozinski, author of a 2009 essay titled “You’re (Probably) a Federal Criminal,” knows as well as anyone else. Third, and most importantly, Kozinski fails to accord any of the importance of the right to vote that he accords to the right to bear arms. Democracies can happily exist without guns. They cannot exist without votes.
Unsurprisingly, Thomas also maintains a dreadful record on voting rights while arguing that the Constitution protects abusers’ access to firearms, possibly including assault weapons. Not every conservative judge takes such an extreme view of the Second Amendment. Judge J. Harvie Wilkinson III has criticized courts that “disenfranchise[e] the American people on this life and death subject.” But like Kozinski and Bea, Thomas seems to have decided that the right to bear arms towers over all other rights—even when it actively intrudes upon others’ safety and liberty. This logic is deeply troubling. When courts hold the right to shoot in higher esteem than the right to vote, they degrade constitutional values of civic engagement, favoring violence and brutality over democratic participation. Our Constitution deserves better.