Voisine and the Significance of Second Amendment Silence

The Supreme Court released an opinion today in Voisine v. United States (full opinion here), a case described by Rory Little of SCOTUSblog as both "arcane" and "unremarkable." But the case involves guns and statutory interpretation, so here I am writing about it.

Voisine concerns 18 U.S.C. §922(g)(9) which prohibits those who have previously been convicted of a "misdemeanor crime of domestic violence" from possessing firearms.  18 U.S.C. §921(a)(33)(A) defines the Section 922(g)(9) prohibition to encompass anybody previously convicted of a misdemeanor against a domestic relation that necessarily involves "the use or attempted use of physical force."  The question before the Court: whether Voisine's prior conviction for misdemeanor assault against his girlfriend in violation of Section 207 of the Maine Criminal Code constituted "the use or attempted use of physical force" under the federal law.  Section 207 of the Maine Criminal Code prohibits a person from "intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person." The central issue: whether "reckless" use of force is sufficient to constitute a prior use of force, or whether the prior crime had to involve knowing or intentional use of force.

In this post, I will first explore Voisine's quirky background, then outline the statutory arguments that constituted the bulk of the Majority and Dissenting opinions. I then turn to the Second Amendment issue, which rears its head only in Justice Thomas's solo dissent, and explore whether the Court's silence on this issue signals how it may address future cases with potential Second Amendment questions.




Voisine's Background

Before getting into the substance of the argument, I feel obliged to point out the Court's statement of facts as to how Voisine ended up in violation of federal firearm laws:

Petitioner Stephen Voisine pleaded 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.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A). Several years later, Voisine again found himself in legal trouble, this time for killing a bald eagle. See 16 U. S. C. §668(a). While investigating that crime, law enforcement officers learned that Voisine owned a rifle. When a background check turned up his prior misdemeanor conviction, the Government charged him with violating 18 U. S. C. §922(g)(9).

Killing a bald eagle! What a world we live in! The best coverage I could find for Voisine's latter conviction was this article by Dawn Gagnon of the Bangor Daily News. Voisine tried to excuse himself from his violation of the Bald and Golden Eagle Protection Act by telling authorities that "he thought he had shot a big hawk," but this proved unsuccessful. Gagnon's article also recounts an exchange between Voisine and the trial judge:

U.S. District Judge John Woodcock did not mince words in imposing his sentence during Monday’s hearing in U.S. District Court in Bangor. 

“From the court’s perspective, it is bad enough to shoot our national bird out of the sky but even if he mistook it for a hawk, it is illegal to shoot a hawk in Maine,” Woodcock said, later adding, “I would have believed you were intoxicated [when the eagle shooting took place] because it was so stupid.” 

“I agree,” Voisine said from his seat at a table he shared with his Bangor attorney, Virginia Villa. 

Woodcock also noted that Voisine had yet to show remorse for his actions. When given the opportunity to address the court during Monday’s hearing, Voisine instead told the court he did not know he couldn’t possess guns because a rifle that had been taken away from him after a 2008 fish and game violation was returned to him by authorities. 

“And there was six others hanging on the wall,” he said.

Gagnon also reported on the rarity of bald eagle shootings in Maine:

State game wardens who attended Monday’s sentencing declined to comment, saying that a statement from the U.S. Fish & Wildlife Service was forthcoming. They did, however, say that bald eagle shootings are exceedingly rare and that the incident involving Voisine could be a first in Maine since bald eagles became federally protected more than 70 years ago.

I was not able to find any other news stories on any of Voisine's other antics other than this story about Voisine's December 2011 arrest for theft and carrying a concealed weapon. Voisine allegedly attempted to steal seven knives, some wrenches, flashlights, and other items from Walmart. Voisine told the authorities "that he carried those items on him whenever he went anywhere 'this time of year.'" While I am not 100 percent sure that the Stephen Voisine in this story is the same Voisine whose case was heard by the Supreme Court, I would be surprised if there were another Stephen Voisine in Wytopitlock, Maine, population 407.

The Statutory Interpretation Issue

The Court held that misdemeanor domestic violence under 18 U.S.C. §922(g)(9) includes reckless domestic assault. The Court noted that 18 U.S.C. §921(a)(33)(A) defines misdemeanor domestic violence as conduct that involves the "use" of force against a domestic relation, and that "use" does not necessarily connote an intentional or knowing use of force. The Court also noted that 34 states and the District of Columbia defined domestic assault as including reckless use of force at the time Congress enacted the current version of 18 U.S.C. §922(g)(9).

Justice Thomas and Justice Sotomayor dissented, arguing that "use" means to employ something for a particular purpose. Accordingly, the "use" of force against another purpose requires that the force be employed with the purpose of being used against another person, thereby requiring the intention or knowledge that the force be used against another person. The Dissent cited examples of how force may be "unleashed" against others due to reckless conduct, including a father text messaging while driving who crashes and whose son, a passenger, is injured as a result. There, the father was "using" the car, and it injured the son, but the father did not use the car for the purpose of inflicting injury upon the son. The Dissent contended that the Majority's reading of "use" would label the text messaging father's car crash as an instance of domestic violence, and render the Majority's reading of "use" unacceptably broad.

The Second Amendment (Non?) Issue

Because Voisine involved firearm restrictions, commentators emphasized that Voisine was (at least in part) a Second Amendment case. Justice Thomas breaking his traditional silence during oral arguments in Voisine to raise Second Amendment questions (reported on here, here, and here) provided some basis for those who argued that the Court may evaluate the constitutionality of the federal restriction on firearm possession by those previously convicted of domestic violence.

Ultimately, the Second Amendment was largely absent from the final Vosine opinions. Voisine argued that the Court should adopt his knowing or intentional reading of "use," because to read the law otherwise would lead to a potential Second Amendment violation. The majority noted Voisine's Second Amendment argument in a footnote, but dismissed it on the ground that the law was only susceptible to one interpretation.

Justice Thomas alone dissented on Second Amendment grounds, and argued that the federal prohibition on firearm possession by those convicted of misdemeanor, reckless use of force against a domestic relation violates the Second Amendment. Justice Thomas expressed initial concerns with the breadth of the existing law, noting that "A mother who slaps her 18-year-old son for talking back to her—an intentional use of force—could lose her right to bear arms forever if she is cited by the police under a local ordinance." Justice Thomas wrote that the majority's reading of the statute "extend[s] the statute into that constitutionally problematic territory," (he later strengthens his language to "patently unconstitutional territory.")

Some of Justice Thomas's language suggests that while he is willing to accept a firearms prohibition on those convicted of misdemeanor domestic violence involving intentional or knowing use of force against domestic relations, Justice Thomas is unwilling to extend that prohibition any further. Justice Thomas's overall argument, however, focuses on his concern about misdemeanor domestic violence that is punishable by a fine alone, and which therefore does not implicate the federal constitutional right to counsel. Reading Justice Thomas's dissent as a whole, it seems that he would be unwilling to accept as constitutional a ban on firearm possession by those previously convicted of misdemeanor domestic assault if the prior violation was punishable by no more than a fine -- whether or not the law defined domestic assault as intentional, knowing, or reckless conduct.

Most notable, from a Second Amendment perspective, is the silence of other conservative justices (mainly Alito) on the Second Amendment issue. Voisine's firearm prohibition does extend beyond the permissible "longstanding prohibitions" identified in District of Columbia v. Heller, which identified a prohibition on firearm possession by "convicted felons" as "presumptively lawful." In Voisine, the Court upheld a regulation that prohibits those convicted of misdemeanor domestic violence (including reckless domestic assault) from possessing firearms. While the Heller Court noted that the presumptively lawful restrictions it identified was not an exhaustive list, Heller's lack of clarity on what restrictions are lawful makes any decision expanding that list noteworthy.

So, despite what most commentators may say, there is a Second Amendment issue lurking in the background of this case, even if it is not the most dramatic or groundbreaking Second Amendment issue that courts have confronted in recent years. Accordingly, the refusal of Chief Justice Roberts and Justice Alito to join in Thomas's Second Amendment dissent suggests that this expansion of Heller's presumptively lawful restrictions is an expansion that even most conservative Justices are willing to accept.

Parting Thought

Because Voisine involves a law concerning guns and those convicted of domestic violence, coverage of the case is unsurprisingly politicized. Take, for example, this oversimplifying headline:
"BREAKING: Supreme Court Just Ruled that Domestic Abusers Can't Have Guns," for an article that paints the case as "a major victory for women's rights and domestic violence advocacy groups."

Those who write about or discuss the case in this manner should take note that most of Justice Thomas's dissent was joined by Justice Sotomayor, a fact that Jonathan Adler writes is "the most interesting thing about Voisine." While the Dissent's approach would have admittedly created a significant hole in the federal prohibition of firearms for those previously convicted of misdemeanor domestic violence, criticizing the Justice Thomas for doing so would necessitate directing the same criticism against Justice Sotomayor. I suspect that those who would rush to criticize Justice Thomas would generally be less willing to criticize Justice Sotomayor, so I advise that those seeking to do so make sure that their criticism is well-founded, rather than a knee-jerk attack on the Dissent's reading of the law.