This article was published by The McAlvany Intelligence Advisor on Wednesday, June 29, 2016:
One needn’t be reminded of how close the Supreme Court rulings were in McDonald and Heller (both decided 5-4) to appreciate just how tentative the court’s support is of the Second Amendment. Most however are likely to think that the current court’s makeup is essentially a standoff: 4 supporting and 4 opposed.
The ruling handed down on Monday in Voisine et al v. United States should disabuse any such perception. The court’s present position is closer to 6- or 7-1 opposed.
On the surface it’s an obscure case, having to do with a couple of Mainers who were convicted a decade ago of domestic abuse. On unrelated matters it turned out that each of them owned firearms and, under a federal law passed decades ago, those misdemeanor convictions required them to give up their guns, for life.
They appealed, and the case eventually was accepted by the Supreme Court for review in February. During the trial, Justice Clarence Thomas, ending a self-imposed decade-long reticence about questioning the lawyers while they presented their cases, asked one of the prosecutors: “Ms. Eisenstein, just 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?”
Stumped by his question, she remained silent. Thomas went on: “[This is a] misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun which, at least of now, is still a constitutional right.”
By that time, of course, the court had already made up its mind. It would rule against Mr. Voisine et al who tried to argue that the violation didn’t merit the extreme punishment of a lifetime ban against owning firearms. When the final vote was tallied, it was 6-2, with Thomas and (somewhat surprisingly) Sonia Sotomayor opposed.
Thomas penned his opposition in three parts, two of which Sotomayor supported. The third part, however, explained how the ruling violated Second Amendment rights, and Sotomayor refused to consent to Thomas’ dissent in that part. So, in the instant case, the anti-Second Amendment justices are lined up 7-1.
Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm….
In this case, petitioners were convicted under [that law] because the possessed firearms and had prior convictions under Maine’s statute….
The question presented is whether a prior conviction … can strip someone of his right to possess a firearm. In my view [that conviction under Maine law] does not qualify as such an offense, and the majority errs in holding otherwise.
I respectfully dissent.
He explained that the federal law banning firearm possession as a result of a conviction of domestic violence is already excessively broad, and that the court’s reading made it even worse:
[The federal law] is already very broad. It imposes a lifetime ban on gun ownership for a single intentional nonconsensual touching of a family member. 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. The majority seeks to expand that already broad rule to any reckless physical injury or nonconsensual touch.
We treat no other constitutional right so cavalierly. In construing the statute before us so expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the court continues to relegate the Second Amendment to a second-class right.
Maine is one of 34 states with domestic violence laws on the books that then turn into abridgements and abrogations of the Second Amendment under federal law. This means simply that the Supreme Court finds those state laws more persuasive in prohibiting exercise of Second Amendment rights than the amendment itself.
If HRC takes office in January, she has already promised to ramp up the present attack on that right, starting, she says, from her “very first day in office.” Over the next four years she’s likely to have ample opportunity to nominate more anti-gun justices to the court as present members die or retire. That would cement into place the Second Amendment as a “second-class right” for generations to come.