The Volokh Conspiracy
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Justice Clarence Thomas is known for many things. One is his reticence when it comes to asking questions during oral arguments. Thomas has made clear his opinion that there is no lack of questions from his colleagues, and that he is usually happy to sit quietly on the bench. Indeed, until this week, Thomas had not asked a question during oral arguments since 2006.
Monday, however, when it appeared there were no more questions for one of the attorneys in Voisine v. United States, Thomas decided to ask a question.
Here is what transpired, according to the official court transcript:
JUSTICE THOMAS: Ms. Eisenstein, one question. 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?
[ILANA H.] 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 well-documented evidence that those individuals pose a—a long-term 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 six-fold 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 manner and means by which 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 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.
Interestingly enough, Thomas's intervention prompted additional questions from his colleagues on the bench.
JUSTICE [ANTHONY] KENNEDY: I—I suppose one answer is—just a partial answer to Justice Thomas's question is SORNA, a violation of sexual offenders have to register before they can travel in interstate commerce. But that's not a prevention from traveling at all. It's just a—it's a restriction.
MS. EISENSTEIN: Well, Your Honor, it's a prevention in requiring prophylactic measures in order to prevent a substantial—because Congress has identified a substantial risk of harm from people identified as committing those types of offenses.
JUSTICE [STEPHEN] BREYER: Do it—what is it we have—they raised this in their brief. They say, let's focus on the cases in which there is a misdemeanor battery conducted without an intentional or knowing state of mind.
Now, they say if this, in fact, triggers—this is the question JUSTICE Thomas asked—if this, in fact, triggers a lifetime ban on the use of a gun, then do we not have to decide something we haven't decided? And I think it would be a major question.
What constitutes a reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed? But –
– the point is, she's raised a question, and she wants us to answer that question. Is this a reasonable regulation given—you just heard the argument, in part—given the distance and so forth? So what am I supposed to say, in your opinion, in respect to that rather important question?
MS. EISENSTEIN: Your Honor, two answers to that. First is this comes up only in the nature of constitutional avoidance, not as a direct Second Amendment challenge.
As we've already argued, this statute, in the government's view, is clear that misdemeanor crimes of domestic violence include batteries, whether they be committed –
JUSTICE BREYER: Stop you at the first point. Your argument on the first point is that she did not raise the constitutional question. She said in order to avoid a constitutional question, we should decide it in thus such and such a way.
So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we—or our point is, we don't have to decide that here.
MS. EISENSTEIN: That's correct, Your Honor.
JUSTICE BREYER: Thank you.
MS. EISENSTEIN: If there are no further questions….