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Ilana Eisenberg argues for the federal government on February 29.

Domestic Violence

Clarence Thomas Breaks 10-Year Silence to Question Domestic Violence Gun Ban

In a Supreme Court case where convicted domestic abusers want their gun rights restored, the Justice raised concerns about protecting the Second Amendment.

Justice Clarence Thomas, famous for his quiet participation in Supreme Court proceedings, broke his decade-long silence on Monday morning during arguments for a case concerning the Lautenberg Amendment, the federal law which bans domestic abusers from owning guns.

The question came at the end of the justices’ question time in Voisine v. United States, a case in which two Maine men convicted of domestic violence are claiming that they should be exempt from the Lautenberg Amendment’s prohibition. As Ilana Eisenstein, the attorney representing the federal government, wrapped up her arguments, she asked if there were any further questions.

Justice Thomas, who hasn’t questioned an attorney since February 22, 2006, spoke up: “One question,” he said, causing reporters to snap to attention and reach for their pens. “Can you give me another example where a misdemeanor suspends a constitutional right permanently?”

Thomas and Eisenstein went back and forth for five minutes, focusing largely on the impact that the domestic violence gun ban has on Second Amendment rights. 

As The Trace reported earlier this month, one of the petitioners in the case, Stephen Voisine, has been convicted 14 times of misdemeanor domestic violence for assaulting several partners. He has also violated four protective orders. The other petitioner, William E. Armstrong III, had previous convictions for assaulting his wife, and a sentencing court in Maine expressed worry that he had a “long-term problem” with violence against women.

Federal officials learned that despite these domestic violence convictions, both Voisine and Armstrong continued to own guns — triggering separate convictions for unlawful weapons possession. The men hope to overturn those charges by convincing the Supreme Court that the reckless behavior that led to their many misdemeanor charges does not fall under the definition of domestic violence used in the Lautenberg Amendment.

Thomas, a defender of gun rights and an ideological ally of the recently deceased Justice Antonin Scalia, was suspicious of the connection between Voisine and Armstrong’s prior assaults against their partners and their subsequent convictions for owning firearms illegally. He asked Eisenstein if Voisine and Armstrong should not be subject to the federal gun ban because they didn’t use guns to hurt their partners.

Thomas:

“Would you have a better case if this were a gun crime?”

Eisenstein answered by saying that domestic violence is a good predictor for future gun violence and can be part of a pattern of long-standing and dangerous behavior:

Your Honor, I think it would be perhaps a better case, except that the evidence that Congress relied on … ties initial crimes of battery to future gun violence. That evidence is extremely strong. And Congress recognized that this was a recurring escalating offense.”

Eisenstein also cited a behavioral link between men who commit domestic violence and those who use guns to kill their partners. (If a gun is introduced into a relationship where there is abuse, the chance of homicide increases twelve-fold.) 

Thomas’s line of questioning came despite the court’s refusal to hear an argument that the Lautenberg Amendment violated Second Amendment rights when it took the case last October. When Thomas pressed the issue by asking whether other fundamental rights, like speech, could be taken away based on misdemeanor conduct, Justice Breyer reminded the court that the case centered on the definition of domestic violence, not gun rights: “Our point is, we don’t have to decide that here,” said Breyer.

Both Thomas and the late Scalia felt that the bar for restrictions to the Second Amendment should be kept very high. But now that Scalia’s seat is empty, court watchers wonder if Thomas may be speaking up to fill the ideological void. As Steve Vladeck, a law professor at American University, told CNN, “That he’s now asking questions — for the first time in over a decade — is as powerful evidence of the impact of Justice Scalia’s absence as anything we’ve seen from the justices thus far.”

[Illustration: Art Lien]