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Earlier today, the United States Supreme Court, in the matter of Voisine et al v. United States held 6-2 that a person convicted under state law for a “reckless” domestic assault would fall under the blanket prohibition of persons permanently banned from possessing a firearm by 18 U.S.C. sec. 922(g)(9) for committing a “crime of domestic violence”.

The case appears to have centered on the mens rea of the crimes at issue. Petitioners Stephen Voisine and William Armstrong argued that they should not fall under the blanket ban under sec. 922(g)(9), because their convictions could have been based on reckless conduct, and not knowing or intentional conduct.

The mens rea of recklessness being, as Black’s Law Dictionary describes it, “Conduct whereby the actor does not desire harmful consequence but…foresees the possibility and consciously takes the risk,” or “a state of mind in which a person does not care about the consequences of his or her actions.” This is distinguished from “knowing” or “intentional” conduct where (obviously) the perpetrator knew full well what they were doing when committing the crime, and it was to promote an outcome that they desired.

Neither Voisine nor Armstrong sound like particularly appealing (ha ha! – little legal joke there) people. Voisine pled guilty in 2004 to assaulting his girlfriend, in violation of §207 of the Maine Criminal Code, “which makes it a misdemeanor to ‘intentionally, knowingly or recklessly cause[ ] bodily injury or offensive physical contact to another person.'” A few years late, when the Maine 5-0 nailed him again for killing a bald eagle in which case they “learned that Voisine owned a rifle.” He was then charged with violating 18 USC sec 922(g)(9).

For his part, Armstrong pled guilty in 2008 to assaulting his wife in violation of the same Maine law. When the PD paid a return visit some years later as part of a narcotics investigation, they found Armstrong in possession of “six guns, plus a large quantity of ammunition,” as the decision’s author, Justice Kagan, described it.

Both Armstrong and Voisine pled guilty to the violation of sec. 922(g)(9), on the condition that they could subsequently appeal the lower court’s holding that the Maine statute did not trigger the prohibition under federal law.

In rejecting the petitioner’s arguments, Justice Kagan, spent a bit of time with textual analysis over the meaning of the word “use”, and wrote for the majority:

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.

Justices Thomas and Sotomayor dissented from the ruling, arguing that the word “use” is, um, used repeatedly throughout other decisions and statutes to mean knowing, and intentional acts relating to firearms:

Maine’s assault statute likely does not qualify as a “misdemeanor crime of domestic violence” and thus does not trigger the prohibition on possessing firearms…. The Maine statute appears to lack, as a required element, the “use or attempted use of physical force.” Maine’s statute punishes at least some conduct that does not involve the “use of physical force.” Section 207 criminalizes “recklessly caus[ing] bodily injury or offensive physical contact to another person.” By criminalizing all reckless conduct, the Maine statute captures conduct such as recklessly injuring a passenger by texting while driving resulting in a crash. Petitioners’ charging documents generically recited the statutory language; they did not charge intentional, knowing, and reckless harm as alternative counts. Accordingly, Maine’s statute appears to treat “intentionally, knowingly, or recklessly” causing bodily injury or an offensive touching as a single, indivisible offense that is satisfied by recklessness.

What does this mean for gun rights? Well, the Heller decision explicitly allowed the possibility of barring possession of firearms by “felons or the mentally ill.” Although the crime at issue was not a felony, it’s unlikely that the Court would overturn the law making people convicted of domestic violence simply because those crimes were technically misdemeanors; if Congress has the power to bar possession based on a felony, why not a misdemeanor, too?

My rather libertarian views on the issue aside, this probably doesn’t move the needle much on the gun rights issue. The rights of ex-convicts to possess firearms just doesn’t get people fired up, and with an obliging Court, I expect there to be no progress on those issues…well, not in any timeframe that’s meaningful to me.

Where this does move the needle, however, is in the broad area of criminal law. Here, the Court was willing to allow an interpretation that made it easier to sustain a conviction against a petty criminal. On the other hand, the Court released another criminal law decision today involving the former Governor of Virginia which, as SCOTUSBlog reports, will make it “much harder for federal prosecutors to prove charges of public corruption against elected officials.”

I’m sure that’s just a coincidence, though.

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  1. Well, I agree that folks who beat up their spouse shouldn’t have firearms, but it should also apply to LEO’s and government employees. There should be mandatory prison sentences for false accusations.
    It should be well advertised so that everyone know that “Beat Your Spouse and Lose Your Guns”.

    • It does apply to LEOs and .Gov. Its on backgrounds and has resulted in many dismissals. What happens in many cases, LEO and otherwise, is that its plead to as a different charge resulting in non-dismissal from their employment.

    • “It should be well advertised so that everyone know that “Beat Your Spouse and Lose Your Guns”.

      Yes, but, we could also properly incarcerate those bad people and the rest of us could go about our lives without having to have a background check, ’cause those that were out, would be good.

      Since that’s not going to happen, because broken justice system, I would argue that for gun ownership to not be singled out, it should be: “convicted of beating your spouse lose your”…guns, ability to have future spouses, procreate, raise children, own a car, etc, etc.

      A prohibited persons list, is like barring the doors against zombies, and then leaving the windows open.

    • Sorry, but there’s a huge double standard here. The chances of LEO’s even being charged with domestic abuse, much less being actually convicted, are very small relative to private citizens. When family violence occurs among LEO’s the tendency is for the heat to get faded rather quickly. You can have all the laws in the world on the books, but if they’re easily sidestepped or avoided through policy “intrepretations” or other excuses to not act, they don’t mean much. I. Don’t. Like. Double. Standards.

    • So many assumptions you are operating on that i lost count

      Such as,

      the domestic abuser would start killing people if given a gun;

      the domestic abuser would not kill people if not given a gun;

      the abuser would surrender their guns;

      the abuser would not illegally acquire other weapons;

      the abuser needs a gun to kill the partners;

      the right to bear arms can be violated somehow after the abuser has already done the hard time and,

      such precedents do not open channels for further governmental abuse.

      Until you can logically and factually justify all of these assumption and maybe some others, stop propagating something just because it sounds like “common sense”, or else it’s just urban legend

    • “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

      If in any part of your life you state, “I believe in the Second Amendment, but…” then you are a non-absolutist, which means you do not believe in the Second Amendment AT ALL, like SCOTUS, although they do not have the honesty to actually admit it.

      The Second Amendment specifically and absolutely denies the government any authority to regulate arms. That is its sole purpose.

      “If you concede that the very government that the Second Amendment was intended to protect us from has the authority to create, maintain and enforce a list of persons who, in the opinion of the government may not exercise their natural, civil and Constitutionally protected right to keep and bear arms, how will you keep your name off of that list?” – Cliff H

      Furthermore, in keeping with the intent and spirit of the Second Amendment: “It should be well advertised so that everyone knows that ‘Beat Your Spouse and You Will Get Shot!’”

      • Clarence Thomas for president .
        Just more erosion without gain . It would be better to be shot by an abuser than beaten to death with a baseball bat or stabbed fifty times with a kitchen knife . The answer is and will always be armed resistance , that’s one of the reasons for the 2nd A to begin with . Self protection .
        Instead of taking away more folks constitutional rights we should advocate armed and trained for the abused .

  2. I think at this point we have to assume two things are obviously true:
    1. The Supreme Court is perfectly fine with creating rights and protected classes where no constitutional basis exists. Reference recent decisions related to Obamacare and gay marriage.

    2.The Supreme Court is also perfectly fine with limiting and even denying enumerated rights that actually do exist in the Constitution. They are fine and doing this without requiring any due process whereby a person may have the rights reinstated.

    I’m not sure of everything that needs to be done in order to protect yourself from further infringement, but you probably should be seriously thinking about it.

    • You already know the answer to that. Blood of patriots and tyrants…the tree of liberty is thirsty.

  3. This is a very interesting case. It’s also refreshing to see a SCOTUS ruling not straight down ideological lines.

  4. Yeah I don’t see a big change UNLESS you’re falsely accused by an evil be-otch of crap that never happened. Happened to ME.These dudes are hardly poster boys for 2A if what I read is correct. They also both sound like boys who can procure firearms without any “checks”…Just another infringement to ” shall not be infringed”.

  5. Yep, just a coincedence.

    Just a coincedence that the USSC regularly supports the power of the feds to violate the restrictions on the federal government in relation to our explicit civil liberties written in the bill of rights, such as Shall not be Infringed of the second amendment; as only one example, among many; but will defend other “civil liberties” never written of or acknowledged, like the right to murder unborn children.

    Jefferson said over two hundred years ago that having the USSC as the final arbiter of what is “constitutional” is still tyranny by any other name. We are seeing that tyranny now.

  6. Let me save us ALL a lot of time: The gunvermin kourts are useless. They exist to rubber stamp whatever a legislature (their employers) do with “word salad”. This rubber stamping is called legislative deference. In the rare event a kourt strikes an unconstitutional law, the government will just play whack-a-mole. See D.C. post Heller.

    • “… the government will just play whack-a-mole.”

      See the first and second iterations of the federal gun-free school zone acts.

  7. This is a travesty. Any legal structure that permanently bars a citizen of their rights is never acceptable.

  8. False accusations of crimes should carry a penalty. A substantial fine at least that exponentially increases with repeat offenses. (I.e. bogus 911 calls)

    Intentional false accusations that may result in a restriction or chill of any Constitutional right should carry a much more severe penalty and possible jail time or permanent record.

    • “False accusations of crimes should carry a penalty.”

      Bearing false witness – a well-recognized crime for millenia.

      Any person who has been shown to intentionally falsely accuse another of a crime, or through perjury subject a person to conviction and penalties, should, upon the accused person’s absolution, be required to pay the fine or serve out the sentence which the accused would have been subject to had they been convicted.

      Seems fair to me.

  9. It takes a lot of legal sleight of hand to justify a lifetime ban of a constitutional right for a reckless act.

    If the feminazis continue to have their way, states will be imposing life sentences on a guy who slams a door.

    • There’s nothing about domestic abuse laws on the books that disqualify women from being assailants, and men from being victims. So long as you don’t actually have any misguided notions about gender roles (like “men don’t complain” or “when women hit men, it’s not really assault”), you can make equal use of them as applicable.

  10. “On the other hand, the Court released another criminal law decision today involving the former Governor of Virginia which, as SCOTUSBlog reports, will make it “much harder for federal prosecutors to prove charges of public corruption against elected officials.”

    And there was much rejoicing in ClintonLand.

  11. People who beat up their spouses are not immune from needing to kill their neighbors who comprise their government, if said neighbors abandon the Constitution and exercise tyrannical and/or dictatorial powers, which is more prevalent than alleged perpetrators of domestic violence committing violence with guns.

    • The state should not have the authority to prohibit people from marrying. Heck, it shouldn’t have the authority to marry people either.

    • You REALLY think the only people who commit, or are subject to “domestic violence” are married couples?

      FYI, you can be charged with domestic violence for attacks on your parents or siblings.

      And I totally agree with the above comment – the government should have no role whatsoever in marriage.

      The solution to domestic violence issues should be the same as in any other assault – defend yourself, find someone who can help you defend yourself, or call the police and press assault charges. The correct and proper penalty for domestic assault is to be shot during the commission of the act.

  12. Dangerous. A felony should NOT be compared to misdemeanors . A parking ticket , speeding ticket , or disorderly person ” ticket ” …… ALL misdemeanors. Are we now going to prohibit firearms from anyone who EVER made a — Minor Infraction ? ( Anti’s Goal ) Slippery slope here. — > Senator Casey of Pennsylvania introduced : S – 3053 , to add so called ‘ hate crime misdemeanor ‘ to gun prohibition. If passed , how long would it be until the law was EXPANDED to include ALL misdemeanors ..??? How long before ‘ hate speech ‘ is added ? And as we just saw with NO – FLY bills , the ‘ definitions ‘ used are vague and WILL BE ABUSED !! — bill # S – 3053 is worthy of hate.

  13. People with meaningful DV convictions from this century and subsequent criminal use of firearms (even minor ‘gun crime’ like poaching) are not the defendants I would have wanted to see take this to the Supremes.

    Why not some guy who plead ‘no contest’ to spanking his daughter in 1990 and paid a $50 fine to make a nuisance case go away because it was far cheaper than paying an attorney to fight it, then found his civil rights retroactively revoked in 1996?

  14. If someone beats there spouse there needs to be proper incarceration time. If that time is spent and we trust someone to be in public I think they deserve all of their constitutional rights.

    The above issue isn’t always a cut and dry case when it comes to males / females. There are some serious stereotypes that one side can play against the other.

    I wouldn’t always be so quick to pull the plug on a constitutional right.

    • There ain’t no such animal as “Constitutional Rights”!

      The Bill of Rights, the first ten amendments to the Constitution, lists (approximately) 27 specific rights that are Constitutionally PROTECTED against interference from the federal government, and now by incorporation from all governments within the United States of America.

      Since the government did not give us those rights and that same government has been Constitutionally prohibited from interfering with those rights, there are no “Constitutional Rights”.

  15. Anyone else ever get the feeling that the people selected for high office enjoy debasing the Bill of Rights?

  16. Legal dictionary definition :

    n. a lesser crime punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies which can be punished by a state prison term. They are tried in the lowest local court such as municipal, police or justice courts. Typical misdemeanors include: petty theft, disturbing the peace, simple assault and battery, drunk driving without injury to others, drunkenness in public, various traffic violations, public nuisances, and some crimes which can be charged either as a felony or misdemeanor depending on the circumstances and the discretion of the District Attorney. “High crimes and misdemeanors” referred to in the U. S. Constitution are felonies. (See: felony)

  17. Legal dictionary definition :

    n. 1) a crime sufficiently serious to be punishable by death or a term in state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail and/or a fine. 2) a crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail. However, a sentence upon conviction for a felony may sometimes be less than one year at the discretion of the judge and within limits set by statute. Felonies are sometimes referred to as “high crimes” as described in the U. S. Constitution. (See: sentence, misdemeanor)

  18. Now :

    Fifth Amendment
    The Fifth Amendment to the U.S. Constitution reads:
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  19. And ;

    The Sixth Amendment (Amendment VI) to the United States Constitution is the part of the United States Bill of Rights that sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

  20. With the following assumptions

    1. Deprivation of some or any rights may happen as punishment for a crime – it does not have to be all or nothing as some assume (death/imprisonment or nothing else! )

    2. Punishment may be more lenient than the crime deserves but never greater ((you do not put someone away for life for shoplifting, nor fine a murderer). You may even tolerate some things in one society that ought to be a crime in a more ideal society, because enforcement would bring more harm (in my mind marijuana laws fit that)

    3. Punishment should fit qualitatively and not merely quantitatively the crime. One size fits all is a failure, especially at rehabilitation.

    With that in mind, deprivation of gun rights could be a legitimate punishment in itself. I know that SCOTUS views it as a status offense to skirt the ex post facto issue with those convicted prior to the law, but leave that aside for a moment.

    It may stand to reason that for certain reckless behavior one ought to be deprived of certain liberties. DUI, suspended license, reckless discharge of a gun, ban on a carry. But a lifetime prohibition only makes sense if either the crime is so grave as to merit lifetime punishment, or we simply believe anyone who has ever been reckless is generally reckless in character and that character is irreformable. If we believe that, why both rehabilitating many criminals?

    In reality, many engage in reckless behavior as an outlier to their own character, or during their young and stupid years and hence mature. Even some alcoholics clean up. If we were talking about a 6 month ban for a first time reckless domestic abuse case (as opposed to intentional), I can see an argument. Community service, counseling and limitations for a short period could all be legitimate. But lifetime just says, sorry you are broken and irreparable. You might as well not bother any sentencing that involves rehabilitation then!

    • Rehabilitation comes after prison not during.
      Incarceration must be the single worst experience a human could survive. Anything short of that mark makes it ineffective. We must also increase our conviction efforts.
      The criminal weighs the suffering of hard time vs the suffering of not committing the crime and that balance is the compared against his odds of being caught and actually serving time.

      For punishment to be effective the punishment either needs to be so heinous that it is never worth the risk, or enforcement needs to be to a level of “you do the crime you will do the time.”

      Right now our prison system is expecting the cops to be the deterant factor, while the cops are expecting the same of the prison system. The result: crime now does pay

    • Yeah real “sanity” until your spouse or significant other uses your passwords to access a social media account, sets up a trap, and has you arrested for showing up to take them out to eat.

      Never touched the asshole, didn’t have a pistol in my possession, knocked on the door and sat on the stoop waiting for her to come out when a bunch of cops came rolling in rifles drawn. I got the ride and the charge for knocking on the damn door even after my significant other called the DA, the PD, and attorneys telling them that she swatted me so she could get her family to take her back.

      No evidence, never touched her. She smashed all of her computers, trashed the hard drives, and got on a plane while I was being booked in. I was in such shock, felt so betrayed. 10 years and she didn’t say a word to me leading up to this she just flat swatted me.

      And guess what? You’re screwed no matter what as soon as that charge comes down. No Attorney can get you out of it regardless of the promises they make.

      There are tiers of Domestic. You could face charges for as much as showing up after a “harassing communication” or “threatening message”. Hell, you can be charged for raising your voice. The police in my case ignored the pile of illegal drugs on the bed in her apartment, the fact that she was taking all kinds of medication that made her irrational, the fact that the name on the social media account that made the threats wasn’t even my name. They didn’t believe my story and the prepper med-kit shit and always be prepared mindset of having a pistol locked in the trunk didn’t help either. Didn’t matter, they show you take the ride and you will get the charge.

      Gun “rights” are an illusion. They’re a complete JOKE. You have no gun “right”. You have gun privileges which the state can revoke for just about anything. You absolutely do have more of a right to a car in this country than a gun. Nothing you say contray to this will sway my mind because we don’t even deny ex-felons a car.

      So think again before you make such blanket statements and assume the worst about everyone running around with a prior for domestic.

  21. If this was applied to all, 45% of all military, 35% of all LEO and 40% of all jocks could not have a weapon near them

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