Gun Control

Clarence Thomas Suggests That Permanently Losing Your Gun Rights Is No Small Thing

Maybe Congress needs better reasons to bar people from owning firearms.

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SCOTUS

Yesterday, when Supreme Court Justice Clarence Thomas spoke during oral argument for the first time in a decade, it was to raise an issue that even defenders of the right to armed self-defense often ignore: Under what circumstances can someone lose that right?

The case, Voisine v. United States, poses the question of whether reckless behavior is enough to qualify as a "misdemeanor crime of domestic violence" under 18 USC 922, which prohibits people convicted of such offenses from owning firearms. The two men who are challenging that interpretation of the law, Stephen Voisine and William Armstrong, were convicted under Maine assault provisions that cover an offender who "recklessly causes bodily injury or offensive physical contact." Among other things, they argue that reading the federal law to include mere recklessness makes it more vulnerable to challenge under the Second Amendment. 

Yesterday Thomas seized on that point and expanded it during an exchange with Assistant Solicitor General Ilana Eisentein. "You're saying that recklessness is sufficient to trigger a ­ misdemeanor violation of domestic [assault] that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right," he said. "Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?" Eisenstein could not.

Thomas noted that Voisine and Armstrong, assuming they're covered by 18 USC 922, would permanently lose their Second Amendment rights, even though their crimes did not involve guns or any other weapons. Then he posed a hypothetical: Imagine that a publisher commits a misdemeanor by violating a ban on using children in certain kinds of advertising. "Could you suspend that publisher's right to ever publish again?" he asked. Eisenstein thought not.

"So how is that different from suspending your Second Amendment right?" Thomas asked. Eisenstein replied that Congress had "the compelling purpose" of preventing escalating domestic violence by people with a demonstrated propensity to commit such crimes. She also noted that misdemeanants can seek to recover their Second Amendment rights by petitioning for a pardon or expungement.

Although the resolution of this case probably will not hinge on the issue raised by Thomas, federal courts will need to contend with it if they take seriously the constitutional rights recognized by District of Columbia v. Heller, the 2008 decision that overturned a local handgun ban on Second Amendment grounds. Depending on who chooses a replacement for Antonin Scalia, who wrote the majority opinion in Heller, that decision could be reversed or applied so narrowly that it has little practical impact—a prospect to which Thomas alluded when he said owning a gun is a constitutional right "at least as of now." But even assuming that Heller continues to impose restrictions on gun control, it is not at all clear what those restrictions will be, especially when it comes to rules about who is allowed to own firearms.

Although Heller itself blessed "longstanding prohibitions on the possession of firearms by felons and the mentally ill," those categories include lots of people who, unlike Voisine and Armstrong, have demonstrated no violent tendencies at all. If a misdemeanor assault conviction does not justify stripping someone of his Second Amendment rights, why would a felony conviction for selling marijuana or involuntary treatment for suicidal thoughts? Other disqualifying criteria listed in 18 USC 922, such as illegal use of a controlled substance or unauthorized residence in the United States, seem even more tenuously related to the goal of protecting the public from violent criminals. If the right to armed self-defense is guaranteed by the Constitution, Thomas is rightly suggesting, perhaps Congress should not be so quick to take it away. 

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  1. If a misdemeanor assault conviction does not justify stripping someone of his Second Amendment rights, why would a felony conviction for selling marijuana or involuntary treatment for suicidal thoughts?

    Or why you should lose them for selling New Glarus Spotted Cow beer in Minnesota?

    1. I’ve never been able to comprehend why you permanently lose your rights for anything. A free man is a free man and your rights should be restored when you leave prison. If you’re too dangerous to have a weapon, then the appropriate place for you is prison, not roaming the streets with a pat on the head and a warning to “Don’t go getting a gun now you hear?”

      But that would require us to have some sanity in our theories of criminal justice, prosecution and imprisonment….

      1. A common story line in the westerns popular in my youth was the return of man from prison. And someone like The Rifleman would say, he’s paid his debt to society. A man could be restored, but no longer. There is no chance of redemption.

        1. -1 Shawshank.

    2. Or selling too many dildos in Alabama. Or bigamy in SC. Or possession of a marijuana joint 20 years ago, even though that isn’t even a criminal offense in the state of conviction anymore. This is what happens when you allow the government to strip American citizens of their constitutionally protected and guaranteed rights over ‘compelling government interest’, eventually the government will find lots and lots of compelling interests and we find out we don’t have a bill of rights anymore, we have a bill of privileges, and suddenly instead of the constitution protecting our rights it’s compelling a duty upon congress to ensure that only the right Americans have rights. Kind of like the implied right to obtain health care now means the government has a duty to supply it (unlike the enumerated right to bear arms apparently since the government has yet to send me that S&W 686 I keep asking for).

      1. If you want the gov’t to arm you, all you have to do is pose as a terrorist, socialist, communist, or drug warlord, and they’d be happy to send you MRAPs and M16s.

        But pose as a law-abiding citizen, and they can’t strip you of your rights and treasure fast enough.

  2. The cognitive dissonance at HuffPo, Kos, and other left-wing sites was something to behold. You had smug writers screeching about Thomas standing up for women-beaters, a majority of commenters chiming in with the usual totally-not-racist insults about him and a minority actually addressing the excellent point that he raised.

    If you’re against people being stripped of voting rights for felonies how can you possibly be in favor of the government stripping rights for lesser charges? Anyone familiar with the legal system knows that misdemeanor assault is often a bullshit charge that can result from a shove in a bar scuffle as much as it can for actual instances of abuse.

    1. Same reason the ACLU and the left are suddenly opposed to mens rea reform and OTC birth control…

        1. Principals over principles

    2. They’re ignorant of one of Thomas’s reasons for seeing the value of Second Amendment rights. As we know, southern Democrats tried hard to strip from blacks the self protection that gun ownership afforded. The state will always be filled with those who don’t want their power challenged and will take advantage of any loopholes in constitutional rights.

      1. What loopholes? “Shall not be infringed” doesn’t leave any room for loopholes. Our rights are just being ignored.

        1. Loopholes in the interpretation, not the actual text, obviously.

        2. But WELL REGULATED MILITIA!!!!!! Which of course means individual citizens. Couldn’t possibly mean that the government’s militia should be well-regulated.

          1. government do not HAVE militia. Government can call up an area’s militia for certain reasons, but the militia remain the PEOPLE and not the government’s. So, no, government militia, since they do not exist, cannot be “well regulated”.

          2. Keep in mind that the word “regulated” meant something entirely different back then than it does now. The British troops were called the “Regulars” because they were held to a higher standard of required equipment and arms.

            Well-regulated militia, if even not applied to the individual American citizen but to a group of private citizens, would require that they have the same arms as the armed forces, i.e. M4s, grenades, claymores, and other small arms!

        3. Correction: Our rights are being turned into privileges that government has a duty to deny the ‘wrong’ American citizens.

          And government is busy figuring out a way to ensure that every citizen qualifies as a wrong citizen.

          Remember, many want the government to determine who ‘qualifies’ for freedom of the press rights. Many would like to make certain speech unprotected under the right to freedom of speech. Right now you have to ‘qualify’ to even purchase a weapon to keep in your own home. The government is trying to force Apple to pay its employees to write hacking firmware. Our first prohibition was a constitutional amendment that was repealed, today prohibition is as easy as passing a law and pretending the Interstate Commerce Act allows it.

          If government can limit one right for one citizen eventually it will limit all rights for all citizens.

    3. Forget it Moff, it’s Progtown.

    4. Beyond re-enfranchising a select group of people to vote in one specific way, the left has no interest in preventing rights being stripped from anybody. Indeed, the leftists/progressive political system, built on control, has no place for individual rights of any kind.

    5. Because they don’t believe in the Second Amendment. They are afraid of/don’t understand guns in a very abstract sense and therefore pretend that the Second Amendment doesn’t mean anything.

  3. whether reckless behavior is enough to qualify as a “misdemeanor crime of domestic violence” under 18 USC 922, which prohibits people convicted of such offenses from owning firearms.

    Serious question: Can people be prohibited from employing armed bodyguards?

    1. Probably, as a regulation of the bodyguard industry. I’ll bet the Fed Gov could do this too, since the bodyguards might cross state lines.

      1. The ICA is the republican version of the welfare clause. It was meant to allow congress to prevent states from prohibiting commerce through its territory or taxing it excessively. For instance, South Carolina putting a prohibition or incredibly high tax on Georgia cotton making its way to factories in North Carolina. Today it’s the backbone of the war on drugs, the war on incandescent light bulbs, the war on 2 gallon toilet reservoirs.

  4. “the compelling purpose” of preventing escalating domestic violence

    Opportunity to Grandstand = Compelling

    1. “In the name of Cheeses, I *compel* you!”

    2. Under strict scrutiny, showing a compelling interest is necessary but not sufficient. Government must also show that the law or policy is narrowly tailored to that compelling interest.

      1. You have to strictly scrutinize the laws to find the fine print and the loopholes that allow the government to do what the progs want and forbid the government doing what the progs don’t. You don’t see the penaltax clause in the Constitution unless you look very closely, for example, because it’s partially obscured by the hate speech exemption to the First Amendment.

      2. Under strict scrutiny, showing a compelling interest is necessary but not sufficient. Government must also show that the law or policy is narrowly tailored to that compelling interest.

        Government agents have a phrase to cover that, DW: For Your Total Wellbeing.

      3. Not even narrowly tailored. Least restrictive means.

    3. Yeah, we wouldn’t want a victim of domestic violence to shoot her attacker. Therefore we must keep guns out of her hands. And since a direct ban on gun ownership by a victim would be too rank for even liberals to swallow, we’ll have to disarm her indirectly, by making her attacker a prohibited person and therefore making it illegal for her to keep a gun in the house where he lives as well.

      After all, we support gun control: The theory that it is better for a woman to be found dead, raped and strangled with her own pantyhose, than alive with a gun in her purse.

      1. Gun rights or not, anybody who stays in a relationship where they anticipate needing a gun to defend themselves is making a serious mistake, and it’s not a mistake others should have to fix.

        1. We keep passing more and more domestic violence laws and penalties here in SC because we’re first or near first in instances of CDV every year. But if you look into it you find that the vast majority of the victims keep going back to the perpetrator. I point out that maybe we just have more cases because our women for some reason refuse to leave their abusers and maybe we should look into it and start working on that end instead of passing more laws, and of course I become the bad guy. We don’t want results, we want action!

        2. most “restraining orders” are of two types: against the threatened domestic partner who has chosen to leave the house-sharing arrangement, and fears retaliation for the “snub: or rejection; and bogus ones written up as a matter of standard practice, warrented or not, by divorce lawyers preying upon the “make him pauy for his wrongs” sensibilities of the divorc?e, or, likely more common, writing up the restraining order and burying it in the pile of papers she has to sign for the “legal proceedings”….. once that order is signed and filee, HE loses his right to arms, even if he’d never hurt a fly. And I’ve heard of cases where he had no idea he’d been disarmed until the sheriff/marshall shows up with the papers, then takes all his guns. No warning. Pure vindictiveness, and the courts eat it up,

          1. This could be used to disarm the Secret Service. Just collude with a judge to issue restraining orders against every Secret Service agent.

  5. Herpaderp stupidestest justice UNKLE TOMZ!!! SCALIA WROTE ALL OF HIZ UPINYUNZZ!!!

  6. “So how is that different from suspending your Second Amendment right?” Thomas asked. Eisenstein replied that Congress had “the compelling purpose” of preventing escalating domestic violence by people with a demonstrated propensity to commit such crimes. She also noted that misdemeanants can seek to recover their Second Amendment rights by petitioning for a pardon or expungement.

    Compelling purpose, eh? How patriarchal of you.

    Oh, they can petition to have their rights restored? Oh, that changes everything.

  7. “…tenuously related to the goal of protecting the public from violent criminals. ”

    It is a mistake to think that anti-gun efforts have anything to do with protecting the public from violent criminals.

    Would government agents have such a hard-on for squashing second amendment rights if that was what it was about?

    1. No no, you wrong them. They are being completely truthish. To them “the public” = them, “violent criminals” = us.

      1. More a matter of “self defense” = “violent crime”

        Therefore owning a gun for protection is “conspiracy to commit a violent crime,” and every CCW issued represents a license for a criminal to freely walk the streets. And if someone owns a gun for some claimed purpose other than self defense, he might be lying – so better take away his guns, too.

        And when a cop defends himself, that’s a criminal misuse of his issued sidearm. Not because cops lie, not because they get special treatment, but because the purpose of the issued sidearm is to enforce the law, not to commit the crime of self defence.

  8. I made the mistake of going to Slate and reading the comments. These people simply cannot let go of the well regulated militia canard and seem to have an innate inability to understand that the meanings of words evolve over time (I do realize the smarter ones are lying). I’d attempt to set them straight but it’s a pointless waste of time.

    1. “Well regulated militia” is also irrelevant. The source of the right to bear arms is not the second amendment, it is the lack of an enumerated power to limit that right in the Constitution.

      1. No the right to bear arms doesn’t “come from” anywhere. It is a natural right endowed upon me by virtue of my being a human being.

    2. These people simply cannot let go of the well regulated militia canard

      They also can’t grasp that you can regulate the fuck out of the militia as such, without a single gun control law on the books.

    3. Polar bears, being the most awesome bears, the right of the people to keep and bear arms shall not be infringed.

    4. Legal meanings of words don’t evolve. The 2nd Amendment was intended to prevent Congress from banning anyone from owning firearms of military usefulness.

  9. While it’s true that no other right carries the condition that Thomas raises, it’s also true that no other right has as much potential to, when exercised, cause harm to another person. Well, no other constitutional right, anyway?the “right” to abortion is one clear exception.

    Although I suppose you can harm another person through free speech (slander), the free press (libel), or the free exercise of religion (human sacrifice, violence against homosexuals, pretty much everything done in Scientology) so perhaps that’s not as good an argument as it initially seemed?

    1. Then that harm would be a an actual crime, with a victim and everything. Other than supporting prior restraint (and a possible count of thread jacking), what point are you trying to make?

    2. While it’s true that no other right carries the condition that Thomas raises,

      The militia clause is not a condition or limitation whatsoever on the RKBA.

      It is a justification for it, a statement of its importance.

    3. While it’s true that no other right carries the condition that Thomas raises, it’s also true that no other right has as much potential to, when exercised, cause harm to another person.

      So you disagree that say, voting isn’t a potentially violent act with far-reaching consequences?

      You also agree that the pen is NOT mightier than the sword?

      1. Well put. I happen to be filing and paying taxes right now, thanks to some asshole voters who saw fit to take from me to give to others.

  10. I’m making over ?5k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. AU Well, it was all true and has totally changed my life. For further details

    Check this link http://www.workprospects.com

  11. “You’re saying that recklessness is sufficient to trigger a ? misdemeanor violation of domestic [assault] that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right,” he said. “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?” Eisenstein could not.

    Was Eisenstein’s hair blown back exactly as I imagine it?

  12. Eisenstein replied that Congress had “the compelling purpose”

    Can we agree that the words “compelling government purpose” mean literally nothing?

    1. Meaning government’s purpose is to compel

  13. “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?”

    Public urination. Lots of things go away when you’re on a “sex offender” registry.

    1. Excellent point on the ongoing punishment that is the sex offender registry.

  14. The right to keep and bear arms….until Washington screws things up so bad that the people might actually use them

    What they meant was the right to want to defend yourself from government largesse and abuse.

    “I want to shoot you if you come into my house!”

  15. There are over 370 “mental disorders” listed in the latest version of the DSM (Diagnostic and Statistical Manual of Mental Disorders.) The list includes “Tobacco Addiction Disorder” among other equally mundane and ridiculous so-called “mental illnesses.”

    If the DSM is the standard by which Obama wishes to remove our rights to own guns, then I’d guess 90% of the American people could probably be classified with a mental disorder of one kind or another.

    BEWARE, BEWARE

    1. and if we were to relist the things that hve been delisted in the past twenty years, that percentage would likely rise to 99.7%.

  16. Mental health as a weapon against the people is communist in origin..

    Deceptive Transformation: The Truth of Soviet Influence in America and Gun Control..

    Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals.

    The idea of using mental health as a weapon against the people is communist in origin, and the social sciences, or the studying of human behavior has its roots in early twentieth century Russia when Ivan Pavlov developed his
    “classical conditioning” theories. In fact, Pavlov was disturbed that Vladimir Lenin would use these conditioning methods against the people in order to get them to accept communism. Since that time the social sciences have been used as a means of maintaining control over populations and getting them to accept their own down fall. This is happening today in the United States as our universities and public schools have long ago adopted educational techniques based on the social sciences and classical conditioning methods.

    Freedomoutpost

    1. This is true. It wouldn’t be remotely difficult to box every single person into some mental illness or another. And if the government can get the psychiatric profession on board, they’ll make up some new illnesses with the goal of encompassing people who don’t hold the right opinions.

      You’re upset that Hillary Clinton won? Major depressive disorder.

      You think that the Democrat Party has a long-term goal of total gun confiscation? Paranoid personality disorder.

      You refuse to acknowledge the “settled science” of global warming? Delusional disorder.

      You’re nervous about the state of politics in this country? Anxiety disorder.

      You find yourself frustrated with the collectivist spirit and wish to become more independent from society? Antisocial personality disorder.

      And so on.

  17. Arent most “Americans” are born with two arms and two legs…?

    Removal of these arms is not usually even possible.

    Why would an amendment address the normal human body?

    Cutting off an arm would be cruel and unusual punishment anyway.

    JK

  18. THAT is an excellent question. The list of “offenses” that can debar an individual the use of arms is far too inclusive. Simple possession of a non-lethal naturally occurring plant? How about even reselling that plant? To a willing buyer, for an agreeed upon price? THAT rises to the level of seriousness as to deprive someone of their God given right to defense? No. Not possible. How about driving at a rate of speed more than twenty miles per hour in excess of the posted speed limit? IN many state that is a felony “reckeless endangerment” type of crime, and rises to a level sufficeint to pernanently disarm the driver… never mind the details about the car, driver’s skill/training, location, traffic, etc. Far too big a list of “crimes” can result in someone having their right to arms stolen….. unjustly.

  19. The loss of ANY constitutional right is No Small Thing.

  20. Federal law [18 USC ? 922 – Unlawful Acts], as it is now written, is far too broad and too subject to interpretation to be used as a basis to declare that persons are ineligible to exercise a US Constitutional right. The US Constitution does not grant rights; it prevents government from violating rights! The 14th Amendment extends that prohibition on government violating rights to State and local governments.

    Federal law [18 USC ? 922 – Unlawful Acts] needs to be changed such that the only prohibitions are: people who are adjudicated in a court of law to be a threat to themselves and/or others are ineligible to possess, receive, ship, or transport firearms or ammunition. Exceptions and limitations to the adjudication rule shall be:
    ? Persons convicted of crimes in a criminal court are ineligible. This ineligibility ends after any incarceration is complete. This ineligibility may be extended to include any parole and/or probation sentence is complete, only in cases of violent criminal convictions.
    ? Persons certified as a danger to themselves and/or others as a result of mental defect or incompetence either by voluntary individual certification or a court of law, are ineligible. This ineligibility ends after any commitment unless the court determines that the ineligibility extends until any supervised outpatient treatment is complete.
    ? Revocation of US Constitutional rights, beyond what is identified herein, is separably subject to review and appeal in Federal Court.

    1. ? People can lose rights by breaking the law. They can also be found legally insane and a danger to others through due process. We don’t lose rights preemptively. We don’t lose rights because of the actions of others.

  21. even if you can argue that someone’s history of violence grants the government a compelling interest in protecting society from them possibly getting a gun and being even more violent, you’ve as much as admitted the flaw in your argument. you want to presuppose that they are going to commit a crime, and you’re not tom cruise. it opens up the government to claim a compelling interest in doing all sorts of things preemptively in the name of keeping us safe. soon no one will have to commit an actual crime and whoever is president can campaign on having eliminated violence forever because they just arrest everybody beforehand.

  22. the government has no compelling interests in letting you have rights. that’s why there’s a constitution in the first place.

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