Thomas Breaks 10-Year Silence in Gun Rights Case

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By Jessica DaSilva

Feb. 29 — Breaking his silence for the first time in 10 years, Justice Clarence Thomas during oral argument Feb. 29 asked a series of questions that seemed to support the Second Amendment rights of misdemeanor domestic violence offenders.

Thomas asked the government for examples of other misdemeanor crimes that warrant a lifetime ban on a constitutional right. The government could not provide an example, though it alluded to government interests that allow for temporary suspensions on free speech rights.

The constitutional question was not included in the question presented, which focused on statutory interpretation: Whether defendants convicted on a reduced recklessness standard for domestic violence fit under a 1996 amendment that expanded a lifetime firearms ban for domestic violence offenders to include misdemeanors.

Statutory Interpretation

At the center of the case is a decision regarding the method for reading the state statute in conjunction with the federal statutes, Douglas E. Berman, a law professor at the Ohio State University Moritz College of Law, told Bloomberg BNA Feb. 26.

Berman said that the court faces a choice between a categorical approach and a modified categorical approach.

A categorical approach requires authorities to look to the entirety of the statute in determining whether an offender's crime qualified them for the ban on possessing firearms, Berman said. A modified approach requires the court to look at the factual circumstances involved in the offense, he added.

The U.S. Court of Appeals for the First Circuit sided with the government, finding the categorical approach appropriately qualified the defendants for a firearms ban, despite the lower standard .

Bodily Injury?

During oral argument, the justices asked questions about both statutory interpretation and policy regarding domestic violence prevention.

Appearing for the petitioners, Virginia G. Villa, St. Croix Falls, Wis., argued that an intentional state of mind should attach not only to the act that committed the bodily injury, but to the resulting bodily injury itself.

But Justice Sonia M. Sotomayor said her understanding of common law battery is that the intent need only apply to the act, not the result. She gave the example of a husband throwing a glass bottle that shatters against a wall above his wife's head and cuts her face and asked whether the intent to throw the bottle should be enough to qualify for the recklessness standard.

“I respectfully disagree, your honor,” Villa started.

“I know,” Sotomayor interrupted. “If we end up disagreeing because the government points to many examples where this is the case, how do you win?”

Villa said the government's examples only dealt with cases involving bodily injury, rather than offensive physical contact, of which the two defendants had been convicted under a Maine statute.

Sotomayor—the only sitting justice who served as a criminal law judge—pushed back, asking whether the only requirement is that intent existed to physically contact the victim, which she understood as the definition of common law battery.

Justice Samuel A. Alito Jr. followed up with that line of questioning, asking whether the intent must attach to the action or the offensiveness of the act. Villa argued it must attach to both.

Chief Justice John G. Roberts Jr. then asked about the federal law's language that puts forth its own definition of battery as “use of physical force” and what that encompassed. Justice Elena Kagan agreed and asked for an example that could constitute “reckless behavior under a battery statute but which you think would not involve the use of force.”

Villa discussed an example where a man being chased by another man “closed the door very forcefully behind him,” catching the chaser's fingers in the door.

“You just said it,” Kagain said. “He closed the door very forcefully behind him.”

Villa tried to clarify that the intent should attach to the result, meaning that the man closing the door should only receive a charge if he meant to cause injury to the man chasing him.

“I know,” Kagan responded. “And that's why it's reckless and not knowing or whatever the other term is, but you're still using physical force and that's the—that's the term that has to be interpreted here: the use of physical force.”

Villa tried pushing back on her previous point before Kagan jumped in again.

“The language is just the ‘use of force,'” Kagan explained. “And what we are trying to decide is whether that includes use of force that indeed is carried out without an intent to harm, but is carried out with an understanding that there is a risk of harm. That's what recklessness is.”

Domestic Violence Prevention

Still, Villa maintained that intent must exist as to the result of the action. Sotomayor then asked about the domestic violence prevention policy behind the federal law.

“Isn't it prototypical in many of these domestic violence cases where much of the violence employed is not direct violence, not hitting—there's a lot of that—but there's an awful lot of the examples I raised of reckless conduct that leads to violence, either from drunkenness or from other conditions?” Sotomayor asked, “You're using ‘use of force' as it's being defined in other areas. Why does it fit into this domestic violence case?”

Villa tried to answer before Sotomayor expanded her point.

“Whether it is touching or not, it is something that is intended to control one's partner,” Sotomayor explained. “And so if you have to use force to control one's partner, or you do something that is offensive to control one's partner, it is still the idea that you are implementing any level of force in order to achieve an end, and that end is the control inherent in domestic violence.”

In her answer, Villa fell back on the intent argument, stating that the intent to control one's partner would establish the intent necessary for the result of the action.

Congressional Intent

Alito changed the topic to ask about congressional intent behind the amendment that expanded this lifetime ban to misdemeanor domestic violence offenders.

“So battery—common law battery—they don't care what the actual statutes are around the country?” Alito asked about Congress. “They are just interested in the offense of common law battery—is that realistic?”

Kagan piggybacked off those questions, saying the purpose of the amendment was to encompass a wide range of different statutory language describing domestic violence misdemeanors across the country. Villa said the fact that Congress declined to use the words “battery” or “recklessness” should demonstrate that it meant to solely encompass a common law definition of battery.

Will Prosecutors ‘Do the Right Thing'?

Turning from their dogged questioning of Villa, the justices barely directed any questions to government attorney, Assistant to the Solicitor General Ilana H. Eisenstein.

Roberts asked the government what could be wrong with having a heightened knowing standard. Eisenstein made a more concrete distinction between a knowing and reckless intent standard commonly used in most states.

“For example, if there's a push, it's reckless as to whether his wife simply stumbles backward or falls down and injures herself,” she said.

Justice Anthony Kennedy asked whether a husband could receive a misdemeanor domestic violence charge for arguing in a car with his wife, running a stop sign, and getting into an accident that injures his wife.

Eisenstein said it was possible; however, she maintained that the likelihood of a prosecutor pursuing such a case would be low.

“Do we have precedent from this court saying it's OK, we can trust the prosecutors to do the right thing?” Kennedy asked. “Can you cite me a case that says that?”

Eisenstein said her point wasn't to trust prosecutors but that to construe the meaning of the statute to require knowing intent of the resulting injury would exclude almost all the misdemeanor laws that Congress sought to cover.

Thomas Breaks Silence

Justice Ruth Bader Ginsburg spoke out, asking whether the rule of lenity would apply in this case. Eisenstein enjoyed several minutes without interruption that allowed her to explain that because the statutes were not ambiguous, the rule of lenity did not apply.

“If there are no further questions—” Eisenstein began.

“Ms. Eisenstein, one question,” Thomas said, breaking his decade of silence. “Can you give me—this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor suspends a constitutional right?”

Seemingly taken aback, Eisenstein said she was unsure of Thomas's question.

“Well, I'm looking at the—you're saying that recklessness is sufficient to trigger a violation—misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right,” Thomas began. “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?”

Eisenstein could not offer an example resulting in a permanent ban on a constitutional right, but cited to situations in which the government's interest outweighed individuals' First Amendment rights, which were temporarily suspended.

Looking Ahead

Joan S. Meier, a professor at George Washington Law School and founder of the Domestic Violence Legal Empowerment and Appeals Project, which submitted an amicus curiae brief in the case, told Bloomberg BNA Feb. 29 that Thomas's questions surprised her.

Meier said Thomas established a strong history of siding with domestic violence prevention positions.

However, Meier added, it could be possible that Thomas stepped in to fill the void left by Justice Antonin Scalia.

“They did not see eye to eye in a lot of things, especially in a lot of domestic violence cases,” Meier said. “It may be that he feels the need to be a bit of a gadfly with Scalia absent. It may also mean that he’s particularly concerned about gun rights.”

Despite her uncertainty on the meaning behind Thomas's questions, Meier said she believed it likely that a clear majority would reject the petitioners' arguments and uphold the First Circuit's decision.

To contact the reporter on this story: Jessica DaSilva at

To contact the editor responsible for this story: C. Reilly Larson at

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