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February 29, 2016

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

The question in the title of this post is the question I have been asking again and again since the US Supreme Court decided in Heller and McDonald that the Second Amendment secured an individual right to keep and bare arms that was to be enforced in a manner comparable to other rights enumerated in the Bill of Rights. It also happened to be the question that Justice Clarence Thomas asked the federal government during oral argument today in Voisine v. United States

As highlighted by a whole bunch of press coverage spotlighted here at How Appealing, it is notable simply that Justice Thomas spoke up at oral argument after having been silent in that setting for a decade.  But I trust regular readers will not be surprised to hear that I am excited that Justice Thomas decided he had to speak up to ask what I think is the very hard question about the meaning and reach of the Second Amendment that lacks a very good answer if Heller and McDonald are serious about the need to treat the Second Amendment seriously like all other rights enumerated in the US Constitution's Bill of Rights.

Not only did Justice Thomas ask this important question toward the tail end of oral argument in Voisine, he followed up with a First Amendment analogy that I find pretty compelling:

JUSTICE THOMAS:  [L]et's say that a publisher is reckless about the use of children, and what could be considered indecent [placement in an ad] and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation.  Could you suspend that publisher's right to ever publish again?

MS. EISENSTEIN: Your Honor, I don't think you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher...

JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

Critically, even though I do not believe the government here had any satisfactory answers for Justice Thomas's tough Second Amendment questions, the Justice was not even making his arguments as forcefully as he could have in the context of the federal criminal prosecution at issue in Voisine.  Critically, Voisine is not a case in which someone previously convicted of a state "reckless" misdemeanor is now seeking a legal declaration that he has Second Amendment rights.  Rather, Stephen Voisine is a schnook who was subject to a federal felony prosecution (and as much as 10 years in federal prison) simply for possessing a rifle (while apparently hunting a bald eagle!?!?) because a number of years earlier he pleaded guilty to a Maine domestic violence misdemeanor. 

For the record, I am not a big fan of Maine schnooks who in the past were involved in a domestic incident and years later go out hunting bald eagles.  But I am even less of a fan of the creation of new jurisprudential doctrines that would allow the federal government to bring a felony prosecution of an individual engaged in what might be otherwise constitutionally protected activity simply based on a long-ago misdemeanor violation of a State law.  That is the reality of what is going on in Voisine, and even folks not supportive of Second Amendment rights should be concerned that a case like Voisine could end up casting poor light on other constitutional protections if his conviction gets upheld in this case.

Some prior related posts:

February 29, 2016 at 03:43 PM | Permalink


For lots of reasons - so glad he finally spoke. Silence is power, but really, youth wants to know.

Posted by: beth | Feb 29, 2016 4:39:57 PM

A schnook is a "fool," someone easily duped. Why are you using the word here? Your concerns are valid as a whole especially since you are consistent about them (e.g., voting rights matter to you too as does 1A rights for sex offenders) so why a word that trivializes?

The guy here didn't just commit some trivial offense akin to someone who had some pot or something. The person here was "convicted in 2002 and 2008 of assaulting his wife in violation of Maine's misdemeanor assault statutes" going by the opinion below. Twenty-nine months after his last conviction, again going by the opinion below, "six firearms and ammunition" were found during a search (4A rights are limited upon conviction). For whatever reason, he was found guilty for only one. But, just because he didn't have the gun to harm some other woman (guys who abuse guns that way generally don't) doesn't erase that -- and not in the distant past -- this "schnook" was a two timer domestic violence offender.

I'm concerned with lines here too but okay? The federal crime concern sounds like a federalism issue. Also, assault, especially twice, easily can be a felony. If anything, too often, abusers don't get enough of a punishment. Finally, 2A are special in that unlike belief, speech etc. there would -- at some point -- be a limit for violent offenders. cf. Alito dissenting from denial of cert in a RFRA case IN PRISON. Still, convictions do burden other rights, even misdemeanors I gather. Do only felonious sex offenders have their travel and associational rights restricted?

Posted by: Joe | Feb 29, 2016 4:42:07 PM

I mean "schnook" in terms of a stupid person, Joe.... and I think you are looking at the record of William Armstong, not the record of Stephen Voisine. Voisine's case involved two misdemeanor cases involving his girlfriend (in 2003 and 2005), following by getting arrested for killing a bald eagle with a rifle. (Notably, it seems killing a bald eagle is a federal misdemeanor, but the possession of a rifle by someone who had the wrong kind of long-ago misdemeanor prior made this a felony case and now has it up before SCOTUS.)

Someone too stupid to know it was a bad idea to kill a bald eagle and also not to realize that just having a gun risked a felony prosecution strikes me, Joe, as a classic "schnook" as I tend to use the term.

That all said, Joe, you are right that "assault, especially twice, easily can be a felony." So these defendants should have been charged with a felony if society thought it important that they lose a lot of rights. But they are only guilty of a misdemeanor, and I really fear a constitutional jurisprudence where misdemeanor convictions (which often may not include right to counsel or all the traditional jury rights and related procedural protections) can be the basis for greatly reducing rights. (There are, roughly speaking, more than 10 million misdemeanor cases filed each year, and modern laws are so expansive that all of us likely could be charged with one each week based just on our behavior driving around town.)

Posted by: Doug B. | Feb 29, 2016 5:31:57 PM

Should a person's 2nd Amendments rights be taken away for a non-violent felony? What if I plead to a forged check case and get probation but a felony conviction. Why should I be prevented from possessing a gun to protect my family?

Posted by: Don't Ask | Feb 29, 2016 5:59:03 PM

Just remember everyone: two legs good, four legs bad and some constitutional amendments are more equal than others.

Posted by: Daniel | Feb 29, 2016 6:00:03 PM

While I think the question is a good one and is one that should be asked (and probably will be another day), I feel it is not relevant to the question presented. Here, the statute precludes one convicted of domestic battery from owning a firearm. Further, that statute promulgates the requisite intent that a state domestic battery law must contain in order to be convicted of the federal felony possession of a firearm. The federal statute requires knowingly/intentionally mens rea. The Maine statute at issue also states that one may also be convicted of a domestic battery recklessly. As a result, Maine's domestic battery law does not fall under the bailiwick of the federal statute, thus the petitioner/defendant could not be convicted under the statute. However, I'm not exactly sure what role the jury's finding of fact plays here. He may have been found to be reckless, he may have committed the battery knowing/intentionally. Or the jury instruction might have stated either/or to convict.

Posted by: Mike | Feb 29, 2016 7:09:23 PM

Prof. Berman, I agree with that. I think there's an easier argument to make that some violent misdemeanors are better candidates for Second Amendment restrictions than non-violent felonies. Once you recognize that a declaration of what a felony is is entirely decided by the legislature, the term "felony" loses a lot of force in this argument (compared to a traditionally narrow group of felonies).

An even easier example than the one you used is one in Virginia. If you don't pay your fines and court costs (or child support as another example), your license is suspended. It used to be, if you drove with a suspended license three times, you'd be declared a Habitual Offender. While people are no longer declared Habitual Offenders, people previously declared still hold that status. If you drive twice as one, it's a felony. So, in Virginia, you could be denied your second amendment rights for driving five times to work to pay outstanding fines.

Posted by: Erik M | Feb 29, 2016 8:42:22 PM

I used the SCOTUSBlog page on the case to read the opinion below, but yes, it did involve Armstrong as well. Duly noted. So, let me focus on Voisine.


"Voisine's case involved two misdemeanor cases involving his girlfriend."

I realize you are concerned with the breadth of a misdemeanor rule and didn't deny there is a concern there as a general matter. My concern is the use of "schnook" and this case specifically. Your phrasing here does the same darn thing. WHAT sort of "case" matters, especially when drawing appropriate lines. In prison, people have the right to practice religion and very well (though only two states allow it) might warrant even the right to vote, but it's a bit trickier to give them the right to bear arms.

We aren't dealing with Martha Stewart here. "Voisine was convicted in 2003 and 2005 of
assaulting a woman" which is something a tad harsher than "schnook" would do(do murderers, e.g., get called that for being foolish? no; it is usually tossed to trivial offenders, almost as a term of endearment).

Anyway, as noted by the SCOTUSBlog recap at the end, Thomas' questions do have answers, so the 2A isn't unique there. But, the guy didn't merely lose his gun rights for violating bald eagle laws, even if that was how he was caught in the end. The "schnook" was twice convicted of domestic abuse, a violent crime. This provides a much more reasonable link, the sort of thing important here when drawing lines for a constitutional right that is treated differently as noted than others and for good reason, to the limit at issue here.

Posted by: Joe | Mar 1, 2016 1:23:35 PM

ETA: "in prison" regarding voting rights means those convicted of felonies ... not sure about misdemeanors in each state and the rules for those not convicted are also mixed.

Posted by: Joe | Mar 1, 2016 1:25:06 PM

"So these defendants should have been charged with a felony if society thought it important that they lose a lot of rights"

That's two-edged sword. First, domestic violence is probably something not treated harshly enough, in part because of the sensitive nature of using intimates as witnesses and dealing with children etc. So, harsher punishments here in various cases likely warranted.

But, felonies will also result in more jail time and other harsh results. This is something you have written that you are concerned about. It seems to me perhaps better to target things more narrowly here, including less jail time and so forth but more concern about specific matters -- e.g., two time offenders access to dangerous arms [especially outside of self-defense/the home] or access to the victims [which can have certain travel or other rights being affected, rights deemed fundamental as well].

Concern for procedural protections also is duly noted though not sure if they were not provided here (did the people plea down? in various cases, lawyers etc. are given for lesser offenses). The importance of the right can be factored in there as they should be when constitutional rights are burdened for sex offenders, including for "civil" offenses.

Posted by: Joe | Mar 1, 2016 1:37:46 PM


What I hear you saying is that you support the "vulnerable victims" exception to the Constitution? Is that correct?

Posted by: Daniel | Mar 1, 2016 1:43:11 PM

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