Justice Thomas’ Dissent in Voisine and Non-Felon Prohibitions

As litigators and judges grapple with Bruen’s historical tradition test, one issue that is sure to surface repeatedly is the status of group prohibitions on gun possession.  Notably absent from the list of “presumptively lawful” restrictions in Heller is the federal prohibition on gun possession by those convicted of domestic-violence misdemeanor offenses, codified at 18 U.S.C. § 922(g)(9).  The provision was recently expanded by the Bipartisan Safer Communities Act to cover offenses against non-spouse victims with whom the perpetrator has a “continuing serious relationship of a romantic or intimate nature.”

The Supreme Court considered the domestic-violence prohibitor in a 2016 case, Voisine v. United States.  Federal law defines “misdemeanor crime of domestic violence” as a crime under state law “that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”  The question in Voisine was whether reckless (as opposed to knowing or intentional) assault on a spouse or family member met the “use of force” element and supported disarming the perpetrator.  The petitioners were two men convicted of domestic violence offenses and later charged with possessing firearms in violation of 922(g)(9), who both argued that their domestic-violence convictions were for state-law offenses that could have been committed with merely reckless intent and thus did not qualify under the federal prohibitor.

In a 6-2 decision (the case was argued just weeks after Justice Scalia passed away, and decided well before Justice Gorsuch’s confirmation), the Court affirmed the First Circuit’s determination that 922(g)(9) “encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.”  Justice Thomas, joined in part by Justice Sotomayor, dissented from the decision.  Justice Thomas would have held “that the ‘use of physical force’ requires intentional conduct.”  Because the Maine statute under which the petitioners were both initially convicted “criminaliz[ed] all reckless conduct, [it] capture[d] conduct such as recklessly injuring a passenger by texting while driving resulting in a crash”—conduct which Justices Thomas and Sotomayor found beyond the intended scope of 922(g)(9):

In sum, “use” requires the intent to employ the thing being used. And in law, that intent will be imputed when a person acts with practical certainty that he will actively employ that thing. Merely disregarding a risk that a harm will result, however, does not supply the requisite intent.

Because he found that Congress did not intend “to sweep in all reckless conduct” under the domestic-violence prohibitor, Justice Thomas would have held that the convictions at issue were insufficient (under a categorical approach) to support a prosecution under 922(g)(9) for unlawful possession of firearms.  Justice Thomas also wrote, in a section not joined by Justice Sotomayor, that, “[t]o be constitutional, . . . a law that broadly frustrates an individual’s right to keep and bear arms must target individuals who are beyond the scope of the ‘People’ protected by the Second Amendment,” and opined that there was no “other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.”

Much of the discussion in Voisine focused on a theoretical debate about mens rea and the common law definition of battery.  The justices posited several hypothetical scenarios, including:  (1) someone who throws a plate or bottle intending to hit the wall, but hits their spouse instead; (2) someone who texts while driving, causing an accident that injures their spouse; and (3) someone who slips while holding a door for their spouse, causing the door to hit and injure the spouse. 

The justices debated which of the above scenarios might be covered by 922(g)(9), with the majority stating that the “use” of physical force necessarily imposes volitional limits on the scope of the prohibitor while still applying to reckless offenses generally (so, for example, someone who loses their grip on a soapy dish and hits their spouse would not be covered, while the plate or bottle-thrower would be).  Justices Thomas and Sotomayor, on the other hand, would have found conduct such as the case of the text-messaging driver to not involve the use of force and thus be outside the scope of the prohibitor, even though such conduct is “reckless” at common law (“[T]he majority overlooks the critical distinction between conduct that is intended to cause harm and conduct that is not intended to cause harm.”).  Therefore, in their view, the government’s preferred reading of 922(g)(9) to include all reckless conduct was inconsistent with congressional intent.

One primary concern about the analysis in Voisine, which arose during oral argument in that case, is that it was decided amid an uncertain post-Heller legal backdrop.  After Bruen, the more fundamental question seems to be whether 922(g)(9) is sufficiently rooted in historical tradition given the lack of direct analogues throughout most of American history. 

Some portions of the oral argument transcript in Voisine, however, suggest how Justice Thomas, at least, might view the question and highlight issues with applying Bruen’s historical-analogical approach to misdemeanor-based disqualification generally.  Notably, Voisine marked Justice Thomas’ first question at oral argument in over 10 years.

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

. . .

MS. EISENSTEIN: . . . [T]he evidence that Congress relied on and ­­-- and that the courts below that have addressed the Second Amendment concerns that Your Honor is highlighting have even gone into a more robust analysis of the --­­ the evidence that ties initial crimes of battery to future gun violence. That evidence is extremely strong. And Congress recognized that this was a recurring escalating offense.

. . .

So --­­ so I understand Your Honor’s concern that --­­ that this is a potential infringement of individual’s Second Amendment rights, but I believe that Congress has identified a compelling purpose and has found a reasonable means of achieving that purpose.

Two things stand out from this exchange.  First, it seems to indicate that Justice Thomas is suspicious of the entire enterprise of disarming misdemeanants—whether domestic violence offenders, violent misdemeanants, or otherwise.  But what of Bruen’s historical approach and the fact that a neat felony/misdemeanor dividing line did not exist at the time of the Founding?  As Will Tress describes, U.S. states gradually formulated the modern distinction in an iterative process over time that settled on the nature of punishment (fine vs. imprisonment) as the key distinguishing factor and converted certain crimes that were not considered felonies at common law into felonies (such as arson, for example) by making offenders subject to prison terms.  Justice Thomas’ question underscores one major problem with using Founding-era history to determine the scope of group prohibitors:  even the originalist will gravitate toward judicial rules, such as the felony-misdemeanor distinction, that were fundamentally different in 1791.  Although the terms “felony” and “misdemeanor” certainly existed at the time, their substantive meaning has changed significantly and it was not foreseen in the Founding Era that states would settle on the fine vs. imprisonment dividing line.  

Second, in response to Justice Thomas’ query about whether any other constitutional right can be suspended indefinitely upon a misdemeanor conviction under state law, Justice Kennedy offered one suggestion during oral argument:  the requirement that sex offenders “register before they can travel in interstate commerce” under SORNA.  An additional potential example is domestic violence restraining orders and the First Amendment’s freedom of association.  Civil restraining orders can often be issued upon “reasonable proof” of acts of abuse, and curtail the subject’s freedom to associate with certain individuals (in some cases permanently, after an additional hearing).  To be sure, there can be substantial overlap between the conduct that gives rise to a civil restraining order and conduct circumscribed by the criminal law.  But consider that cyberstalking—behavior where we might expect the empirical basis for disarming perpetrators to be quite strong—is in some instances not criminalized at all, or only criminalized under misdemeanor harassment laws.  Especially in thinking about the future of misdemeanor-based prohibitions, targeted cyberstalking is a far cry from texting while driving.