Contributor, The Volokh Conspiracy

Voisine v. United States was among the final three decisions handed down this morning by the Supreme Court. In Voisine, the court concluded 6-2 that a reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9), which prohibits firearm possession by those convicted of violent crimes.

The most interesting thing about Voisine is the lineup. Justice Elena Kagan wrote for the court, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Samuel Alito. Justice Clarence Thomas dissented, joined by Justice Sonia Sotomayor (save for the last part of Thomas’s opinion which concerned the Second Amendment).

Thomas’s dissent begins:

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.

Parts I and II of Thomas’s dissent focus on the problems with treating reckless acts as qualifying violent offenses that involve the “use of physical force” under federal law. Sotomayor joined these parts of the dissent.

Sotomayor did not join Part III, which argues that the court fails to account for the potential Second Amendment implications of its decision. This part begins:

Even assuming any doubt remains over the reading of “use of physical force,” the majority errs by reading the statute in a way that creates serious constitutional problems. The doctrine of constitutional avoidance “command[s] courts, when faced with two plausible constructions of a statute—one constitutional and the other unconstitutional—to choose the constitutional reading.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 213 (2009) (THOMAS, J., concurring in judgment in part and dissenting in part) (internal quotation marks omitted). Section 922(g)(9) 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. I would not extend the statute into that constitutionally problematic territory.

The opinion ends:

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.