Justice Thomas Speaks Truth To Power: Second Amendment is not a Second-Class Right

March 1st, 2016

During oral arguments in Voisine v. United States, Justice Thomas asked his first question from the bench in a decade. Far more significant than the fact that CT asked a question was what he asked about. Voisine considered a fairly run-of-the-mill issue of statutory interpretation: “Whether a misdemeanor crime with the mens rea of recklessness qualifies as a ‘misdemeanor crime of domestic violence’ as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).” Although the petitioners requested a review of the constitutionality of the statute under the Second Amendment, the Court–without noted dissent–limited the question presented to the statutory issue.

Despite the fact that the Court limited the question presented, Justice Thomas broke his decade-long-silence to ask the (stunned) Assistant to the S.G. about whether constitutional rights may be suspended based on a conviction for a domestic-violence misdemeanor. Thomas asked “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?”Thomas pushed back and noted that in neither of the cases before the Court did the petitioners use a weapon in their act of domestic violence. “The suspension is not directly related to the use of the weapon . . . . It’s just a family member’s involved in a misdemeanor violation; therefore, a constitutional right is suspended.”

Analogizing to the First Amendment, he pressed whether the ASG could think of  “a suspension of a First Amendment right that is permanent?” If a publisher published indecent pictures of children, could the “publisher’s right to ever publish again” be suspended? The ASG answered no, of course. So Thomas shot back, “how is that different from suspending your Second Amendment right.”

This line of questioning continues a theme that Thomas explored last year in his dissent from denial of certiorari in the Highland Park “Assault weapons” case. In that dissent, which I wrote about for National Review, Thomas explained “I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.” Thomas’s questions from the bench are meant to illicit the subjugation of the Second Amendment. I noted this rank double standard in The Constitutionality of Social Cost, which is as true today as when I published it (way back) in 2011.

To understand the future of the Second Amendment, one must ask, “Why is this right different from all other rights?” In District of Columbia v. Heller and McDonald v. City of Chicago, the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently from other constitutional rights.

Indeed, the framework I explored–which measures the propensity for social costs–sounds in Thomas’s analysis:

Second Amendment challenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demonstrated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appropriate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

The question of whether a violent misdemeanant can be perpetually denied a constitutional right is not an open-and-shut issue. Justice Thomas’s questions bring this issue to the forefront, and will force the lower courts and DOJ attorneys to being briefing this question. Now that Justice Scalia’s presence will no longer be felt, Justice Thomas is speaking truth to power. Indeed, for all of the unfair criticisms for Justice Thomas for his idiosyncratic views, he has an uncanny ability to shift the dialogue on issues through his solo dissents, and now, piercing questions.  His questions demand answers.

Finally, in a nod to the fact that Heller is hardly settled law where four, and maybe soon five Justices would overturn it, Thomas said the right to keep and bear arms is “at least as of now, is still a constitutional right.”

The entire exchange is after the jump.

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?

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 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 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 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.