Justice Thomas speaks: Misdemeanors and the Constitution

“One question … This is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”

With that “one question,” two weeks after the sudden death of Justice Antonin Scalia, and one week after the unofficial anniversary of a decade of silence during oral arguments in the Supreme Court, Justice Clarence Thomas broke his inquisitional fast. The question, and several follow-up questions along the same theme, obviously flustered the assistant U.S. solicitor general to whom the questions were addressed and stunned court-watchers who have grown accustomed to the high court’s lone African-American voice – and its most conservative – not being heard from the bench.

Beyond the novelty of Justice Thomas breaking his silence for the first time in 10 years, the topic of his questions also raised some eyebrows. The case at hand, Voisine v. U.S., challenges the applicability of a federal law that makes it a felony for anyone ever convicted of a domestic violence misdemeanor to possess a firearm or ammunition. The law, commonly known as the Lautenberg Amendment, specifies that it only applies to those domestic violence misdemeanors which have “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” within a defined domestic relationship. The petitioners contend that, because the state law under which they were convicted uses a broader definition for domestic violence, which can include unintentional physical contact, unless the charge specifies use of force or threats, as described in the Lautenberg law, the proscription of firearms cannot be legally applied. Their petition goes on to challenge the constitutionality of the Lautenberg Amendment itself under the provisions of Article I’s ex post facto restrictions and the Second, Fifth and Sixth Amendments.

The court agreed to review the case, but only as it applies to the statutory questions, not the constitutional challenges, but it was the constitutional issues that Justice Thomas raised in his questions. This suggests that perhaps he was unhappy with the decision to limit review of the case to only the statutory interpretations and wanted at least to wave the flag of the Constitution before letting the case proceed.

It is frustrating that the court refused to examine the constitutional challenges to Lautenberg, though a just decision would not be assured, especially in the absence of Justice Scalia. The amendment is bad law, which should never have been passed by Congress and should have been overturned immediately by the courts. The problem is not that the law unfairly penalizes “wife beaters,” but rather that it punishes people who have never “beaten” anyone. The punishment is not commensurate to the crime. By definition, a misdemeanor is a minor crime, one which does not meet the criteria for punishment beyond fines, probation, or incarceration for less than a year. By including a lifetime revocation of a fundamental, constitutionally enumerated right, for a crime that is defined as minor, Congress overstepped their authority and corrupted the justice system. If the crime warrants revocation of constitutional rights, then it should be prosecuted as a felony, not a misdemeanor. If the crime does not meet the definition of a felony, it should not have felony-level penalties attached.

Proponents argue that perpetrators of acts of domestic violence often go on to escalate their violence, and they present horror stories and statistics to support this assertion. What they ignore is that the vast majority of people convicted of misdemeanor domestic violence do not go on to commit more, and more egregious, crimes. The whole point of having an incremental system of justice is so that those who commit more serious crimes and those who repeat their offenses face more serious consequences, while those who commit less serious crimes and do not exhibit an inclination for repetition face less-severe penalties. By ignoring this established, balanced approach and instituting serious, life-long penalties for actions that are considered minor offenses, Congress and the courts ensure excessive penalty for the majority of offenders, while neutering an argument for elevating the most violent and recidivist offenders to felony prosecution and penalties.

Under Lautenberg, even incidental contact, or no contact at all, can be construed as domestic violence, resulting in the permanent loss of gun rights. A husband trying to get away from an escalating argument who pushes past his irate wife in his effort to get out the door, a girlfriend who reflexively raises her arms against a partner who is yelling inches from her face, a man who slams a hand on a table during a heated argument – all qualify as domestic violence under Lautenberg and have resulted in permanent loss of rights. In one example, a young man lost his rights, his children and his military career, because he blurted out a hollow threat over the phone from thousands of miles away. The young man was serving in Afghanistan, and during a rare phone call home, his wife began berating him with graphic details about the sexual acts his former best friend was performing on her at that moment. The wife was recording her husband’s side of the call and used it to bring charges against him to deny him custody of his children. Because the young man’s outburst included threatened use of a deadly weapon, it fell under Lautenberg, and he lost his right to ever touch a gun.

Regardless of Justice Thomas’s unexpected questions, the Supreme Court is probably going to reject the statutory arguments in the current case. The court will, at some point, have to seriously consider the constitutional conflicts inherent in the law, though, and that’s just another reason Scalia’s replacement must be a strong constitutionalist.

Congress could solve the problem by repealing the offensive law, but there is little hope of that happening. No politician wants to risk the accusation that he is a defender of “wife-beaters.”

©2016 The Firearms Coalition, all rights reserved. Reprinting, posting, and distributing permitted with inclusion of this copyright statement. www.FirearmsCoalition.org.