U.S. Supreme Court

Dissenting in case in which he broke his silence, Thomas sees 2nd-class status for Second Amendment

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Justice Clarence Thomas broke a 10-year silence during oral arguments in February when he questioned whether any constitutional right, besides a Second Amendment right, could be suspended based on a misdemeanor.

Thomas dissented in the case on Monday when the Supreme Court ruled 6-2 that a misdemeanor domestic-assault conviction based on reckless conduct is a “misdemeanor crime of domestic violence” for purposes of the federal firearms ban. Justice Sonia Sotomayor joined parts of his dissent, but not a section accusing the majority of continuing to “relegate the Second Amendment to a second-class right.”

Justice Elena Kagan wrote the majority opinion (PDF) in the case, which challenged the prosecutions of two men charged with violating the firearms ban. The charges stemmed from their earlier guilty pleas to domestic assaults under a Maine law that makes it a misdemeanor to assault another person either recklessly, knowingly or intentionally.

Kagan said the text of the federal law as well as its history support a finding that its ban on firearms possession was intended to cover those who commit reckless domestic assaults—acts that are undertaken with awareness of a substantial risk of injury.

The law was passed in 1996, Kagan said, to bar domestic abusers who are convicted of misdemeanor assaults from owning guns, just as those who are convicted of felony assaults are banned. Thirty-four states plus Washington, D.C., define misdemeanor assaults to include the reckless infliction of bodily harm, Kagan said.

Thomas said the federal law covers convictions involving “use of force,” and that language should restrict the federal gun possession ban to domestic abusers convicted for intentional conduct. Sotomayor joined those sections of his opinion.

But Sotomayor did not join Thomas when he complained that the majority opinion strays into “constitutionally problematic territory” because of its impact on the Second Amendment right to bear arms.

“Under the majority’s reading,” Thomas wrote, “a single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership. And while it may be true that such incidents are rarely prosecuted, this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors.

“We treat no other constitutional right so cavalierly.”

The case is Voisine v. United States.

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