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June 27, 2016

By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants

Confirming that the Second Amendment has far more bark than bite when push comes to shove (puns intended), the Supreme Court this morning rejected a narrow interpretation of the federal criminal statute that forever prohibits any firearm possession by any persons who are convicted of certain misdemeanors. The opinion for the Court authored by Justice Kagan in Voisine v. US, 14-10154 (S. Ct. June 27, 2016) (available here), gets started this way:

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. §922(g)(9).  That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.”  §921(a)(33)(A).  The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.

Justice Thomas authored a dissent in Voisine, which was partially joined by Justice Sotomayor.  His dissent is nearly twice as long as the opinion for the Court, and it starts and ends this way:

Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm “in or affecting commerce.” 18 U.S.C. §922(g)(9).  A “misdemeanor crime of domestic violence” includes “an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by [certain close family members] of the victim.” §921(a)(33)(A)(ii).  In this case, petitioners were convicted under §922(g)(9) because they possessed firearms and had prior convictions for assault under Maine’s statute prohibiting “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A) (2006).  The question presented is whether a prior conviction under §207 has, as an element, the “use of physical force,” such that the conviction can strip someone of his right to possess a firearm.  In my view, §207 does not qualify as such an offense, and the majority errs in holding otherwise.  I respectfully dissent....

At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.  Tr. of Oral Arg. 36–40.  Compare the First Amendment.  Plenty of States still criminalize libel....  I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel.  In construing the statute before us 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 “relegat[e] the Second Amendment to a second-class right.”  Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6).

In enacting §922(g)(9), Congress was not worried about a husband dropping a plate on his wife’s foot or a parent injuring her child by texting while driving.  Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors.  Prohibiting those convicted of intentional and knowing batteries from possessing guns — but not those convicted of reckless batteries — amply carries out Congress’ objective.

Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash.  This is obviously not the correct reading of §922(g)(9).  The “use of physical force” does not include crimes involving purely reckless conduct. Because Maine’s statute punishes such conduct, it sweeps more broadly than the “use of physical force.”  I respectfully dissent.

June 27, 2016 at 10:22 AM | Permalink


Sotomayor join there was surprising; I expected the 2A portion.

Posted by: Joe | Jun 27, 2016 10:43:11 AM

I quickly skimmed that opinion and it is all kinds of terrible. Not so much as to the holding, which I can see, but the logic that she uses to get there. This opinion is especially troubling in light of comments Kagan made in Elonis.

"Reckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another."

That is pure goobldegook because the second sentence contradicts the first: to expose someone to danger (endanger) is manifestly not the same thing to expose someone to the risk of danger.

I've long suspected that Kagan is hostile to a robust 1A based upon her academic work and this case is evidence in spades and goes to the heart of my point in Elonis that as a practical matter there is zero difference between a negligence and a recklessness standard.

True, one doesn't need to decide this point to resolve this specific case. But the fact that this dicta is written by her and the fact that it is featured so prominently in the opinion is making me gloomy about the 1A.

Posted by: Daniel | Jun 27, 2016 10:43:46 AM

Good points here, Daniel, and I susupect Kagan's time as SG and general affinity for "government work" makes her uniquely willing to trust federal prosecutors in these settings. I think she favors giving federal statutes in these domestive violence settings broad reach because she believe --- perhaps justifiably --- that federal prosecutors will only use these statutes to go after folks they think are "real threats" and will not waste their time with minor offenders. But, in the wake of Yates, one would hope she does not lose sight of some of the potential echoes of overcriminalization in any setting.

FWIW, I am pleased to see that Justice Sotomayor gets this even in a domestic violence/firearms setting. I wonder if this will make frequent commentor/critic federalist have a bit more respect for her.

Posted by: Doug B. | Jun 27, 2016 10:53:28 AM

Doug B. is poking the bear.

Posted by: Joe | Jun 27, 2016 12:10:36 PM

I am always interesting in the opinions of bears... and bulls and lions and tigers and all other bloggy animals that like to roar. Indeed, I continue to wish Bill Otis would come back.

Posted by: Doug B. | Jun 27, 2016 12:25:53 PM

A very sloppy, result-driven Opinion, as evidenced by Justice Kagan's justification that 34 states define misdemeanor assaults and/or batteries to include "reckless infliction of BODILY HARM." The observation is entirely irrelevant, since Maine is the ONLY state that criminalizes "reckless OFFENSIVE TOUCHING." Thus, under the "reckless" prong of the Maine statute, a defendant need not intend that physical contact occur, nor intend that the contact be offensive: it need only be shown that he was "reckless" as to either (or both). Under the categorical or modified categorical approach (not mentioned in the opinion), the Court was required to consider the least culpable act under the statute - i.e., reckless offensive touching. It did not do so - at all. Bearing in mind that an "unwanted kiss" successfully has been prosecuted as misdemeanor battery, Voisine/Armstrong has accomplished nothing except set the stage for the next waive of Second Amendment challenges to 922(g)(9).

Posted by: Kim Bonstrom | Jun 27, 2016 1:54:25 PM

How many of those states that have a "bodily harm" standard use the Common Law definition that includes "imputed bodily harm" for offensive touching?

Posted by: Erik M | Jun 27, 2016 2:00:19 PM

Per Justice Kagan, the common law has no relevance to the issues in the case. Per the dissenting opinion in the First Circuit, and the merits brief for petitioners Voisine/Armstrong, the common law did not recognize "offensive touching" as grounds for assault/battery. Per me, I'm wholly unaware of a "Common Law definition that includes 'imputed bodily harm' for offensive touching."

Posted by: Kim Bonstrom | Jun 27, 2016 2:09:20 PM

I can quote easily a half dozen Virginia cases that say assault requires an intent to cause bodily harm and that bodily harm includes any unwanted touching done in a rude, insolent, or angry manner.

Posted by: Erik M | Jun 27, 2016 3:37:56 PM

The issue in Voisine/Armstrong was (should have been) RECKLESS offensive touching. Which to my view makes Virginia's statute - that requires "INTENT to cause bodily harm" - pretty much beside the point (even if Virginia's definition of "bodily harm" includes "unwanted touching"). Also bear in mind that the Maine statute is disjunctive - speaking of causing bodily harm OR offensive touching; at least in Maine, they're clearly distinct acts.

Posted by: Kim Bonstrom | Jun 27, 2016 3:52:51 PM

Everyone here is missing the bigger picture: the broad language of Kagan's opinion strongly suggests that reckless assaults will meet the element-of-force clauses in ACCA, in section 16(a), and in the career offender guideline.

Posted by: Da Man | Jun 27, 2016 4:04:57 PM

I know Justice Alito's strong law and order preferences, but I'm surprised he didn't at least concur to emphasize that he's not considering the Second Amendment implications. Justice Thomas certainly would write that, so I'm not surprised there. Pleasant surprise to see Justice Sotomayor join in part, even if not on that part.

For the Second Amendment aspect itself, I think it should be a given that it shouldn't depend on what a state chooses to classify as a felony vs. a misdemeanor. That could cut against a challenge in this context because a violent misdemeanor would probably make for a stronger case than a non-violent felony. That being said, I tend to sympathize with the dissent anyway since a reckless offensive touching is only violent in the most technical of ways.

Posted by: Erik M | Jun 28, 2016 7:45:38 AM

SCOTUSBlog analysis has a more positive discussion of the majority than suggested by the comments but I'll remain agnostic.

Not sure if Alito tends to concur separately to note that such and such is not at issue in the case. Putting aside that some of Thomas' tone is probably overheated & D.C. v. Heller itself shows guns and speech aren't quite the same (the 1A doesn't stop at the schoolhouse gate as Tinker says; don't think 14 year olds have a right to take a gun to school though), I agree with Prof. Berman that reach of some felony disarmament laws is a concern.

But, noting the reach here might be too broad, this case is not a great vehicle. A more general (non-violent) ban would be more suitable aka the "Martha Stewart hypo."

Posted by: Joe | Jun 28, 2016 10:13:44 AM

Thomas needs to do a better job anticipating the response to his "fundamental right being treated so cavalierly" with the "um yeah, guns can be very dangerous unlike the exercise of any other right". I happen to agree with Thomas, but it's a hole in his opinion. I hardly think though that Thomas' opinion is overheated. There's a con right to have a gun. Period. Full stop.

Posted by: federalist | Jun 28, 2016 11:52:10 AM

14 year olds can take books to school but not guns.

Both involve constitutional rights. But, there are differences in applications.

Posted by: Joe | Jun 28, 2016 6:30:57 PM

"14 year olds can take books to school but not guns.

Both involve constitutional rights. But, there are differences in applications."


Posted by: federalist | Jun 28, 2016 9:38:03 PM

"trite" means "overused and consequently of little import; lacking originality or freshness."

I'm sorry if the fact that speech and guns both involve constitutional rights but are (including via D.C. v. Heller, which Thomas joined without comment) not the same regulation-wise is so obvious but has to be stated so much that it "lacks freshness."

But, c'est la vie.

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Posted by: emily ott | Nov 6, 2016 6:40:37 PM

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