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Earlier this week the U.S. Supreme Court heard oral arguments in the case of Volstein vs. United States, a case where two individuals convicted of misdemeanor crimes had their gun rights permanently revoked. The case centered around the prohibition on people convicted of “domestic abuse” from possessing firearms or ammunition. On the surface, the prohibition seems to makes sense — if we’re going to keep guns out of the hands of “dangerous” people, then surely someone who beats their spouse is a prime candidate. But what if that conviction wasn’t for intentional harm, but instead accidental? What if the convicted person never intentionally harmed their significant other? That’s the basis for the argument before the Court now . . .

The case centers around two individuals convicted of assault on their significant others in the state of Maine. Both men plead guilty at the time, but later were arrested after being found in possession of firearms and ammunition, a violation of the federal statute. Both men decided to fight the new federal charge, citing the fact that the Maine statute is vague in its definition of “battery” and whether that matches with the federal definition.

From the SCOTUS Blog:

Voisine and Armstrong’s argument boils down, then, to an assertion that the common law of battery did not recognize the concept of a “reckless” use of physical force – and if there is ambiguity about this, then the doctrines of “lenity” and “constitutional doubt” require the Court to interpret the federal statute as not including “reckless” domestic assault convictions. Because the Maine statute allows such “reckless” convictions as a possibility, and because the categorical approach says the Court cannot look at the actual facts of Voisine’s or Armstrong’s convictions, they argue that their prior convictions can’t be used. Thus, they say, their federal “domestic abuser in possession” charges should be dismissed.

At its core, their argument is one of semantics and legal jiggery pokery. The more interesting question raised in this case came from Justice Clarence Thomas who hasn’t asked a question during oral arguments of a case in over ten years.

“This is a misdemeanor violation,” Thomas said at one point to Eisenstein. “It suspends a constitutional right—Can you give me another area where a misdemeanor violation suspends a constitutional right?” he asked.

The Supreme Court decided to hear the case based on intricate and annoyingly confusing legal issues, but Justice Thomas seems to be steering the case back to the more important Second Amendment roots of the question. Should a misdemeanor violation — a violation on the same general level as a parking ticket — permanently disqualify someone from exercising a Constitutionally protected civil right?

Over the last few decades the concept behind gun control legislation has been to “keep guns out of the wrong hands.” To try and predict which kinds of people would be most likely to harm others and deny them this Constitutionally protected right in the greater interest of public safety. Most Americans seem to support this concept, as evidenced by the strong support for background checks for firearms purchases.

The question that Justice Thomas raises is where exactly that line is drawn. With gun control measures like “gun violence restraining orders” being issued in California based sometimes on zero evidence whatsoever, do situations like these do more to keep Americans safe or trample the rights of citizens?

We probably won’t get an answer to the more interesting questions this time around. The court seems to be focusing on the dry legal challenge instead of the larger, juicier philosophical issues. That said, it looks like Justice Thomas might be trying to help fill the jurisprudential void left by Justice Scalia.

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  1. Justice Thomas asked several questions to the prosecutor and none were addressed to the defense team.
    This looks promising…

  2. Standby. If held up the new path to gun restrictions will not be ammo tax, safety card, FOID Card, short barrel, lead bullets, or 16 hours of league land weapons training.

    Only a misdemeanor, a traffic
    ticket to end ones ability to lawfully self protect in public. Humm…what new way can government infringe.

  3. “This is a misdemeanor violation,” Thomas said at one point to Eisenstein. “It suspends a constitutional right—Can you give me another area where a misdemeanor violation suspends a constitutional right?” he asked.

    I’ve been asking myself the same question for years. You argue with a person who say’s a wife beater shouldn’t be able to legally keep their guns and you ask them why don’t you change the misdemeanor to a felony and they look at you like your a psycho. Now I know why the Anti-gun folks don’t want that because they’re trying to get the rest of camel inside the tent but (and this me using that crazy concept called common sense here) wouldn’t be be easier and better PR to change the misdemeanor to a felony?

    • wouldn’t be be easier and better PR to change the misdemeanor to a felony?

      Probably not. That would trigger fewer guilty pleas, more trials and fewer convictions while prosecutors and courts are pushing for assembly-line “justice.”

    • It’s a pretty good bet that in most cases the prosecutor tells the defendant (and his government appointed attorney), “Look, just plead guilty to the misdemeanor charge, pay a small fine, and all this will go away.” They NEVER address the long-term ramifications of the guilty plea.

    • Government overreach. Go fishing without a license, the power rangers can take your poles, your tackle, your vehicle, and if you have wild caught fish in your freezer, your home. Sheep not wovles, is what our government wants. They want heroic people to flee their country, instead of defend it.(the heroic courageuos syrians, I hear so much about.) Yeh Im on a rant, sorry…not.

    • I know (personally, not second-hand) a guy who was convicted of dv for breaking a phone that belonged to him, that his girlfriend was using to text the guy she was cheating with.

  4. Think about this though, if I see a white guy like myself walking down the street and I don’t like the way he looks at my lady, I smack him upside the head. Say this is misdemeanor assault/battery. Do my time, probation, anger management, whatever, no loss of firearms rights. The same lady decides to attack me with scissors, I knock her on her butt so I don’t get stabbed and the police and judge believe I abused her, I lose my right to own and/or carry a firearm for life? This also follows under equal protection I would think, it’s just ridiculous.

    • Not true. Any violent misdemeanor carries the loss of gun rights under federal law. A&B is a violent misdemeanor.

      • Seems like Justice Thomas would have known that, if it is true. Or was he just playing around and throwing out a soft-ball BAR exam question for the federal prosecutor to answer?

        • The question asked was about any “other” rights treated like 2A and the answer is no.
          For instance, someone says “that guy is a terrible and dangerous driver and I am afraid of him!”, law says “so what”
          Someone says “that guy is a terrible and dangerous gun owner and I’m afraid of him” law says “give up the guns”
          And driving isn’t even a Constitutionally guaranteed right..

        • It’s also spelled out pretty clearly in the questions asked on the 4473 form when you try to buy a gun. It specifically only mentions “domestic violence” misdemeanors.

      • Mark N.

        You are completely incorrect in your assessment. The Lautenberg Amendment only covers DV cases, and in no other misdemeanor cases, does an individual lose his right to carry or own a firearm. You may lose it if you are on probation, but once you are released from such, you’re permitted to own firearms and ammo again. Not even all felons lose their gun rights, only certain ones do. And, in many cases, they are permitted to case the court for reinstatement after a period of time.

  5. The reason it’s not a felony is…..

    So the poor minorities can continue to vote for the democrats

    And why it will never change.

  6. A misdemeanor is hardly “on the same general level as a parking ticket.” Parking tickets are infractions for which only a fine may be imposed. A misdemeanor can lead to imprisonment for up to one year (under the classic definition, although some states it is up to two years). The issue with DV is that all DVs are misdemeanors, even if the assault/battery is no more than a shove.

    And second, a California GVRO cannot be issued “on no evidence at all.” Under the statute, a TRO may only be issued on sworn affidavits signed under penalty of perjury and reviewed by a judge–and that is indeed evidence. The statute just went into effect on the first of the year, and there has been no news of them being issued, unlike DVTROs, which are quite common.

  7. Thomas’ question has been widely reported, and the further fact that there was an ensuing discussion. What I want to know is what did the attorney say in response, or did she avoid the issue? Because I don’t think that there is any other Constitutional right that can be suspended on a misdemeanor conviction.

    • If you are convicted of a misdemeanor and sentenced to jail time (generally one year or less) then your Constitutionally PROTECTED right to keep and bear arms will be restricted (in theory) for the time that you are actually in custody/jail.

      The major point being made is that in no instance of misdemeanor conviction will any of your Constitutionally protected rights be PERMANENTLY restricted, revoked or repealed.

      • Inmates of jails and prison retain most of their civil rights even when locked up. Seems immoral and illegal to permanently bar a civil right for a misdemeaner conviction.

    • JUSTICE THOMAS: Ms. Eisenstein, one
      Can you give me –­­ this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?

      MS. EISENSTEIN: Your Honor, I ­­ I’m thinking about that, but I think that the – the question is not ­­– as I understand Your Honor’s question, the culpability necessarily of the act or in terms of the offense ­­

      JUSTICE THOMAS: Well, I’m ­­ I’m looking at the ­–­ you’re saying that recklessness is sufficient to trigger a violation ­­ 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.

      MS. EISENSTEIN: Your Honor, to address ­
      JUSTICE THOMAS: Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?

      MS. EISENSTEIN: Your Honor, while I can’t think of specifically triggered by a misdemeanor violation, other examples, for example, in the First Amendment context, have allowed for suspension or limitation of a right to free speech or even free association in contexts where there is a compelling interest and risks associated in some cases less than a compelling interest under intermediate scrutiny.

      JUSTICE THOMAS: I’m –­­ this is a ­­– how long is this suspension of the right to own a firearm?

      MS. EISENSTEIN: Your Honor, the right is suspended indefinitely.

      JUSTICE THOMAS: Okay. So can you think of a First Amendment suspension or a suspension of a First
      Amendment right that is permanent?

      MS. EISENSTEIN: Your Honor, it’s not necessarily permanent as to the individual, but it may be permanent as to a particular harm. And here Congress decided to intervene at the first instance that an individual is convicted of battering their family members because it –­­ it relied on substantial and well­documented evidence that those individuals pose a ­­– a long­term and substantial ­­

      JUSTICE THOMAS: So in each of these cases had ­­– did any of the defendants, or in this case Petitioners, use a weapon against a family member?

      MS. EISENSTEIN: In neither case did they, but these Petitioners ­­

      JUSTICE THOMAS: So that the ­­ again, the suspension is not directly related to the use of the weapon. It is a suspension that is actually indirectly related or actually unrelated. It’s just a family member’s involved in a misdemeanor violation; therefore, a constitutional right is suspended.

      MS. EISENSTEIN: Yes, Your Honor, but I believe that in terms of the ­­ the relationship between Congress’s decision to try to prevent domestic gun violence and its means of doing so ­­

      JUSTICE THOMAS: Even if that ­­– if even if that violence is unrelated to the use ­­ the possession
      of a gun?
      MS. EISENSTEIN: Well, Your Honor, I think the studies that Congress relied upon in formulating the ­­– the misdemeanor crime of domestic violence ban didn’t ­­ were directly about the use of a gun because what they showed is that individuals who have previously been ­­– battered their spouses, pose up to a six­fold greater risk of killing, by a gun, their family member.

      JUSTICE THOMAS: Well, let’s ­­ let’s say that a publisher is reckless about the use of children, and what could be considered indecent displace and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let’s say it’s a misdemeanor violation. Could you suspend that publisher’s right to ever publish again?

      MS. EISENSTEIN: Your honor, I don’t think you could suspend the right to ever publish again, but I think that you could limit, for example, the matter and means which a publisher —

      JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

      MS. EISENSTEIN: Your Honor, I think that in terms of a ­­ the compelling purpose that was identified here, which was the prevention of gun violence and the individual nature of the ­­ of the underlying offense, so here this isn’t a misdemeanor crime directed at any person at large. These are misdemeanor batteries directed at members ­­ specified members of the ­­ of that individual’s family. Congress ­­–

      JUSTICE THOMAS: Would you have a better case if this were a gun crime?

      MS. EISENSTEIN: Your Honor, I think it would be perhaps a better case, except that the evidence that Congress relied on and ­­ and that the courts below that have addressed the Second Amendment concerns that Your Honor is highlighting have even gone into a more robust analysis of the ­­ the evidence that ties initial crimes of battery to future gun violence. That evidence is extremely strong. And Congress recognized that this was a recurring escalating offense. Petitioners are good examples of this. While they didn’t reach, thankfully, the point where they were able to reach for a firearm and were prohibited from having a firearm under Federal law, they have each been convicted multiple times of domestic violence offenses and possess the firearms in close proximity. So these aren’t individuals who had long ­ago convictions and are suffering from that ban.Congress also contemplated exactly the lifetime nature of the ban that Your Honor suggested and left it in States’ hands to resolve that by allowing States to expunge or pardon convictions in cases where an individual either petitions to do so or in some
      States as a matter of course. So ­­ so I understand Your Honor’s concern that ­­ that this is a potential infringement of
      16 individual’s Second Amendment rights, but I believe that Congress has identified a compelling purpose and has found a reasonable means of achieving that purpose…

        • Ha! I thought I was the only one annoyed by book-length “responses”. Brevity is the soul of wit…and avoid eye glazing over syndrome. Oh yeah-I’m happy my ex lying about me knocking her around never wrecked my life. As if a violent dude can’t stab,bludgeon or pummel his old lady without a gun…

        • My bad. I thought I was providing a answer to a question.

          However, if 1-2 minutes of reading causes eyes to glaze over, well that does explain a lot about the state of the 2nd.

          Just sayin…

        • Jeez, the guy did us a favor, by clipping out the relevant Q&A. Took me a minute and a half to read, or I could have elected to just scroll down and read on to next.

          Its not like its costing you anything… jo-ho, the blog speech po-po.

      • Not a lawyer, judge, or Supreme Court Justice, however:

        “…the right of the people to keep and bear arms, shall not be infringed.”

        The alleged or intended victim of domestic abuse has exactly the same right to defense with a firearm as anyone else and has no specific right to petition the government to deny that right to anyone else. This abuse of the Second Amendment is a perfect example of a pre-crime, as so perfectly described by the lawyer in the above exchange with Justice Thomas.

      • The old eyes glaze over pretty easily these days Jason. You are hardly the worst offender. And it’s nearly all “opinion”. I also belong to(perhaps)20 pro-gun/2A FB and other gun supporters. A LOT to wade through. Nice try at “humor”…

      • The short version…
        THOMAS: Can you give me an example?

        PROSECUTOR: No but congress found high correlation between DV and gun crimes against the DV victim.

        THOMAS: But the defendants didn’t use guns against the victim before or after the DV conviction.

        PROSECUTOR: True… but GUNS!

  8. Not everyone charged with domestic battery beat their spouse.,We hear that battery thing, we see blackeyes, bruised faces n fat lips. Domestic battery can be a shove, push or touch. All the officer needs to hear is ” he hurt me”, no physical marks need to be present. First time offense for a D.B. and you loose a constitutional right. Its chipping away at the constitution at its finest. Domestic abusers are lumped in with, rapist, child molesters, and the devil incarnate. The latunberg act was put into effect to strip firearms away from people, thats all. The rest of the D.B. stuff is money, disrupted familys and a system to make more money.First offense misdomeanor should not carry the penalty of a repete felon.

    • Correct, except that it doesn’t have to be a repeat felon; one time is all it takes. And it doesn’t have to be a violent felony either; white collar criminals or a conviction for lying to a federal police officer is all it takes. (Cops can lie to us, why can’t we lie to them? Isn’t “all’s fair in love and war”?)

    • NONE of which are any business of the Federal Gov’t. Those are STATE crimes just as is murder. More progtard special interest overreach.

  9. Faced with a high-risk threat (domestic abusers with guns) you can be proactive or reactive. Proactive measures (prevent access, move to a different house, empowering women, reporting suspicious behavior) prevent crime. Reactive measures (call the police, punch back, investigation, etc) rarely do more than reporting or maybe prosecuting crime. The key to being proactive is to act quickly without unnecessary delay, which is why an easy to convict misdemeanor us the standard instead of a long&drawn out felony that would unnecessarily expose women to risk.

    • Say what? A, D.V, charge is drawn out too, the defendant is on bond until his preliminary court date, at least 10 days, then the trial court, maybe a month, then continuace, maybe another month. The victim is hit with the judicials recomandations,counseling, halfway housing( even tho the defendant cant be near her, the kids, or the house) childeren are subject to counseling, its a pandoras box. And in the end “we the people” applaud the governments right to restrict rights and dictate.

    • You underestimate the pressure to plead to the misdemeanor, usually without reference to the loss of gun rights, because of the expense of lawyers, the expense of trial (which is considerable even on a short cause matter, $10,000 or more for a full day), the expense of lost work–or worse a lost job, the pressure of incarceration, particularly for penurious defendants, and the appeal of having all of these problems go away instead of the defendant digging an even deeper hole (one from which many cannot recover) than that which lead him to assault his or her spouse. In essence, the government has put itself into a position where it can blackmail DV defendants into a guilty plea, even in nonserious, no physical harm cases (such as one of the examples given, one spouse grabs something from the other). Isn’t the penalty disproportionate at that point? It isn’t pre-crime, it is pre-punishment in an attempt to prevent future and unrealized harm.

  10. Faced with a high-risk threat (domestic abusers with guns) you can be proactive or reactive. Proactive measures (prevent access, move to a different house, empowering women, reporting suspicious behavior) prevent crime. Reactive measures (call the police, punch back, investigation, etc) rarely do more than reporting or maybe prosecuting crime. The key to being proactive is to act quickly without unnecessary delay, which is why an easy to convict misdemeanor us the standard instead of a long&drawn out felony that would unnecessarily expose women to risk.

  11. “Should a misdemeanor violation — a violation on the same general level as a parking ticket — permanently disqualify someone from exercising a Constitutionally protected civil right?”

    That’s so grossly disingenuous as to call into question ever taking you seriously again.

    All parking tickets are misdemeanors, but not all misdemeanors are equivalent to parking tickets. Texas misdemeanors span A through C. C is parking ticket level. Class A is serious, even as a misdemeanor, costing you up to a year in jail and/or $4,000 in fines. We’re well past parking tickets there.

    What about im Maine, where the case originated? Maine’s criminal scale runs from A to E, with D and E being misdemeanors. Parking tickets are Class E. Domestic Violence in Maine is a Class D misdemeanor, which carries a penalty of up to one year in jail and/or $2,000 fine.

    Class D crimes in Maine also include Stalking, Reckless Conduct, and possession of up to 100 marijuana plants. If a firearm is involved in a Class D crime for which a firearm is not already an element of the crime, then it’s bumped up to a felony.

    These aren’t parking ticket equivalent scenarios, my friend. So let’s not shade the truth just to play up the falacious “His rights were snatched for life by the big bad government over something trivial!” meme, please.

    • Well said. Another facet is that Thomas was doing exactly what got called “semantics”: trying to focus on what the event really was, but without the fancy legal terminology lawyers use. Just because someone can’t follow the intent of legal distinctions doesn’t render those distinctions “semantics”.

    • So.. class E and Class D are both misdemeanors; parking tickets are misdemeanors and DV is a misdemeanor… Are you trying to support the original article’s assertion that they are the same general thing, because you did. Just because they are different subclasses (parking ticket minor, DV major), doesn’t mean they are not “on the same general level.” Sure, they aren’t on the same *specific* level, at least in Maine; but that isn’t what the article said.
      I think the call for DV (in instances where such is justified) to be a felony makes much more logical sense than having ti be considered a special sub-subclass of misdemeanor.

  12. Better yet, eliminate any punishment after time-served. Get rid of all restrictions on felons and sex-offenders. IF they’re too dangerous to reintegrate fully into society, then they’re too dangerous to be released!

    • If they are unable to reintegrate into society then let them rear their deranged heads above the crowd and have them blown off by the righteous indignation of an appropriate armed response.

    • Scalia was an offender on that very issue: in his opinion on a sex offender case, he literally made up information to support his position that lifetime restrictions on offenders (a huge number of whom are registered offenders only because taking a misdemeanor plea was the only way to not lose house, job, etc. facing a felony trial) don’t qualify as punishment but are reasonable restrictions for the safety of society.

      Which is to say that Scalia supported the very concept behind these restrictions, namely that it’s just fine to slap restrictions on people permanently just because they MIGHT pose a danger in the future.

  13. Cool, just go to work, pay your taxes, break no laws, keep your mouth shut, dont look, dont listen, avoid defending the Constitution, embrace all laws, and there is no big bad government.

  14. Maybe NRA will barge in and save the day, like when they hired former Solicitor General Paul Clement to steal 10 minutes out of Alan Gura’s 30 minute oral argument time when McDonald v. Chicago was in front of the Supreme Court. NRA didn’t put a dime into the state of Illinois for forty years, but when grassroots and Richard Pearson from ISRA conned Otis McDonald into signing on to sue the City of Chicago, NRA figured they could get some good press using a black man as their front.

    At least the NRA state affiliates like ISRA are closer to the grassroots. Maybe not, ISRA was denied cert. by Supreme Court in December 2015, Friedman v. Highland Park. Oops! The good old boys down in Chatsworth were feeling their oats after passing their police union endorsed carry bill in 2013. Their statesmanlike legal strategy was to give the anti-gun Chiefs of Police everything needed to kill armed citizens, like Duty to Inform w/ criminal penalties. “We had to have preemption in our bill” was the explanation to the ISRA hicks.

    With the help of NRA state lobbyist Todd Vandermyde, Pearson & ISRA sold out Otis McDonald and every gun owner in IL, successfully capitulating to the anti-gun police unions. Police are your friends if you’re a good old boy. After Rep. Brandon Phelps HB183 carry bill passed in June 2013, any town in IL had a ten day sunset window to pass an assault weapon ban. Instead of calling it a win and hightailing down to ISRA world headquarters in Chatsworth, the insane clown posse down in southern IL thought they would take on the Supreme Court. FLOP!

    Watching the Klansmen who betrayed Otis McDonald feebly attempt to play politics on a national stage is like watching a cluster of retarded pygmies attempting to play football with the Bears at Soldier Field. Yee-haw!

  15. Sneaking in for slander again demo boy? Once again-wtf do you do for Illinois? And the klan? Seriously?

  16. “On the surface”, a lot of illegal and unconstitutional agitprop makes sense, and that’s what is counted on….that people have lost the ability or willingness to dig deeper than the surface.

  17. Regarding the statement “to keep guns out of the wrong hands”, this is true and has been the stated purpose of nearly all gun control, even going back to post-civil war days. Those “wrong hands” were not kids, or wife beaters, or any other class of people.

    They were black hands.

    And yes, laws made and passed by democrats to keep black people from having guns. They couldn’t put that in the law, so they use words like “suitable persons” and “prohibited persons”.

    Today all gun owners and enthusiasts are being punished by the unintended consequences of these unconstitutional laws. It was before the time when someone who looks like Clarence Thomas would ever be on the Supreme court. This could be why he in particular was asking the question.

  18. What is truly sickening about this is that many individuals like Ray Rice enter into diversion programs which expunge their conviction and their rights are restored. Not everyone is offered a diversion program, possibly because the county or municipality does not have one due to cost. Now, we all saw Ray Rice hit his girlfriend/wife, and does he look like someone who you want to have a gun?

    They also applied Lautenberg RETROACTIVELY, so people convicted ten years before its passage also lost their gun rights. Do you think they turned in their guns, or knew to do so? Did they get a chance to go to diversion?

    Everyone focuses on spousal DV. That might be a major portion of DV, but some people get into a fight with their father, or their mother for God’s sake. It happens, and it does happen in the heat of the moment at times. We now know that the human brain doesn’t fully develop until sometimes, 21-26 years of age. Guess what section develops last? The pre-frontal cortex. Without it, people are more impulsive, reckless, emotional, and fail to weigh the risk against the reward. So, a 19 year-old male may overreact to an argument or threat by hitting someone, sometimes a family member. Does that mean they are going to become a violent person who is going to shoot and kill someone? No. The criminal justice field has been trying to determine risk for thirty years, and as a member of that community, I can tell you we SUCK it determining risk. For every murder in a domestic violence case, there are probably 20 that never involve another act of violence. But, they don’t want you to know that.

    And lastly, when are women going to take some responsibility in all this? They get into these relationships that they know are potentially abusive, there are a myriad of social services available to help them get out, and yet, this is still a huge problem? I don’t believe that. If you do, you also have to admit that women are simply incapable or unable (weaker?). I thought the feminist movement was supposed to raise women up?


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