The Supreme Court Just Says No—Again—to Domestic Abusers Seeking to Possess Firearms
In the aftermath of yet another mass shooting and amid the clamor and chaos surrounding this country’s apparent inability to impose reasonable restrictions on the ownership of guns, the Supreme Court’s ruling in Voisine v. United States1 is a ray of light in the darkness. Indeed, the case reminds us that Congress was once capable of adopting sensible gun regulations, and suggests that there is still a consensus, at least on the Supreme Court, supporting them.
The regulation in question, known as the Lautenberg Law,2 was adopted in 1996 to fill a “loophole” in federal firearms prohibitions. Although felons had long been federally prohibited from owning guns,3 most domestic violence perpetrators were unaffected by that restriction because most domestic violence was—justly or not—charged as a misdemeanor. Because guns are often lethal in homes where there is domestic violence—indeed, battered women are six times more likely to be killed when there is a gun in the home4—this population was a critical one to target. Now that we know that a sizeable minority of mass killers are also domestic abusers,5 the Lautenberg Law must be recognized as protecting not only individual victims, but wider society as well.
The statute in question provides that anyone convicted of a “misdemeanor crime of domestic violence” (MCDV) is prohibited from possessing a firearm.6 A MCDV is defined as any misdemeanor under federal, state, or tribal law involving “the use or attempted use of physical force.”7 In a troika of cases culminating in Voisine, anti-gun regulation advocates have unsuccessfully attempted to undercut, narrow, or defeat the Lautenberg law by narrowing the scope of this definition.8
The Majority Opinion
Whereas in United States v. Hayes9 the issue was the domestic relationship element of a MCDV,10 and in United States v. Castleman11 the issue was whether offensive touching could constitute the use of “force,”12 in Voisine the challenge was whether an assault committed recklessly—as opposed to intentionally or knowingly—constitutes a “use” of force.13 In an elegant, clear, and straightforward opinion, Justice Kagan, bringing along five of her colleagues, laid to rest any doubt. Professorially reminding us of first-year criminal law, she notes that “reckless” conduct is widely understood to be conduct undertaken with “conscious disregard” of the “substantial risk” of harm to another.14 While the word “use” in the phrase “use of force” implies some volition in the exercise of force, she asserts that conscious disregard of a substantial risk easily meets that standard.15
The opinion goes on to discuss “the relevant history,”16 noting that when Congress legislated in 1996, a majority of states had adopted statutes criminalizing reckless as well as intentional or knowing assaults,17 consistent with the Model Penal Code’s authoritative statement that intentional, knowing, or reckless conduct is sufficient for criminal liability.18 This context suggests that Congress was well aware that in piggy-backing on state misdemeanor convictions, the Lautenberg Law would encompass convictions for recklessness. Even more importantly, given that most state convictions do not specify whether a defendant was found to have acted recklessly, knowingly, or intentionally, Petitioners’ preferred approach would mean that all convicted misdemeanants in those states would be ineligible for the federal gun ban, even those who had in fact acted intentionally.
Perhaps the most significant—if less visible—element of the opinion is its treatment of the relevance of common law to the interpretation of this statute. In a “plague on both your houses”-style comment, the Court refuses to choose between Petitioners’ and the government’s arguments over whether recklessness was or was not permitted for assault convictions at common law. Rather it notes that the common law was both mixed and unclear as well as, more importantly, displaced by modern developments—most notably, the adoption of the Model Penal Code and state laws following it:
Nothing suggests that, in enacting 18 U.S.C. § 922(g)(9), Congress wished to look beyond that real world to a common-law precursor that had largely expired. To the contrary, such an approach would have undermined Congress’s aim by tying the ban on firearms possession not to the laws under which abusers are prosecuted but instead to a legal anachronism. . . . [T]he watershed change in how state legislatures thought of mens rea after the Model Penal Code makes the common law a bad match for the ordinary misdemeanor assault and battery statutes in Congress’s sightline.19
The Court’s explicit distancing of itself from a common law interpretation is notable both because it is the first such statement since Justice Scalia’s death,20 and also because the Court’s recent interpretation of the same phrase in 2014 in United States v. Castleman was tied tightly to the common law. The Voisine opinion therefore acknowledges that common law may rightfully inform interpretation of legislation when the legislature used common law terms—thus, it could usefully shed light on the meaning of “force” in Castleman—but it sheds no light on the meaning of the word “use” in Voisine.
Justice Kagan’s striking turn of phrase—“we see no reason to wind the clock back so far”21—may signal a refreshing wind blowing through the high Court—one which may free the Court from the shackles of history previously urged by Justice Scalia—at least with regard to matters that were not part of the common law experience. This is of special significance for women’s rights. After all, because women lacked legal status at early common law, and violence against women was not a crime, historical and common law interpretations of contemporary legal questions have typically worked against protection of women’s rights and interests. This is particularly obvious in recent Confrontation Clause jurisprudence.22 Indeed, “the fact that domestic violence was generally not treated as a serious crime or even recognized as a significant legal problem in the Framing era means that courts and commentators had little or no need to apply the forfeiture principle outside of the traditional witness-tampering paradigm.”23
The Dissent—Strange Bedfellows?
While the majority opinion has triggered relatively little commentary, the dissent24 signed by odd bedfellows Justice Thomas and Justice Sotomayor has raised more questions. In Parts I and II, the pair provide a convoluted discussion of the statutory interpretation question, critiquing the majority’s position that recklessness involves sufficient “volition” to qualify as a “use” of force. In Part III, Justice Thomas, alone, argues that the total suspension of the “right to bear arms” based on a single “minor” criminal violation “relegat[es] the Second Amendment to a second-class right.”25
Why the joint dissent? My bet is that Parts I and II were actually written by Justice Sotomayor, while Part III was written by Justice Thomas; and that they decided to combine forces (in part). The first Part’s discussion of the phrase “use of force,” with its spinning out of abstract and legal dictionary definitions of various words, and blurring of the boundary between “accident” and “volition,” reads somewhat like Justice Sotomayor’s rather verbally technical Castleman opinion. Moreover, her somewhat surprising dissent may be more explainable in light of the fact that it was her latter opinion that planted the seed for the Voisine Petitioners’ case, by noting that recklessness might not be sufficient for a MCDV under the Lautenberg Law.26
In truth, while Justice Sotomayor’s section may be the most surprising portion of the dissent, that of Justice Thomas may ultimately be more significant. In District of Columbia v. Heller,27 the opinion establishing a right to bear arms untethered to state militias, the Court affirmed standard restrictions on gun ownership to people such as the mentally ill and convicted felons.28 But if the Second Amendment29 right is to be treated as the equivalent of other constitutional rights, even this language may subject regulations such as the Lautenberg Law to far more critical scrutiny. The good news for those who seek more gun restrictions is that this position garnered only one vote on the High Court. The good news for advocates of the right to bear arms is that that vote is reliable and compellingly marshals constitutional principles to argue that gun ownership may be prohibited only in very compelling contexts. While the Voisine opinion, then, was relatively straightforward, future firearms cases may be much less so.
Professor Joan Meier is a nationally recognized expert on domestic violence and the law. In her more than 20 years at GW, she has founded three interdisciplinary domestic violence clinical programs, two of which provided legal representation, advocacy, and counseling to victims of domestic violence and have been recognized by the U.S. Department of Justice as leading national models. She has published widely on domestic violence, and received the Cahn Award from the National Equal Justice Library for her article on domestic violence and welfare reform. In 2003 Professor Meier founded the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), which provides pro bono appellate representation in compelling domestic violence cases, including Supreme Court cases, and trains attorneys and courts around the country.
- United States v. Voisine, No. 14-10154, slip op. (U.S. June 27, 2016).
- 18 U.S.C. § 922(g)(9) (2012).
- 18 U.S.C. § 922(g)(1) (2012).
- C. Campbell et al., Assessing Risk Factors for Intimate Partner Homicide, 250 Nat. Inst. Just. J. 16 (2003).
- Amanda Taub, Control and Fear: What Mass Killings and Domestic Violence Have in Common, N.Y. Times (June 15, 2016), http://www.nytimes.com/2016/06/16/world/americas/control-and-fear-what-mass-killings-and-domestic-violence-have-in-common.html?smid=fb-share&_r=0.
- 18 U.S.C. § 922(g)(9) (2012).
- 18 U.S.C. § 921(a)(33)(A) (2012).
- See United States v. Hayes, 555 U.S. 415, 423, 429 (2008) (rejecting Petitioner’s claim that a MCDV cannot include generic assault statutes if the relationship element is not specified); United States v. Castleman, 134 S. Ct. 1405, 1410 (2014) (rejecting Petitioner’s claim that a misdemeanor conviction under a statute which permits conviction for “offensive touching” could not have been intended to trigger the firearms ban).
- United States v. Hayes, 555 U.S. 415 (2008).
- See id. at 423, 429.
- United States v. Castleman, 134 S. Ct. 1405 (2014).
- See id. at 1410.
- United States v. Voisine, No. 14-10154, slip op. 1 (U.S. June 27, 2016).
- Id. at 4.
- Id. at 6 (the word use “is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct”).
- Id. at 8. Interestingly the opinion avoids the term “legislative history” and any explicit analysis thereof. See id. at 1–12.
- Id. at 8.
- Model Penal Code (Am. Law Inst. 1962).
- Voisine, slip op. at 10 & n.5.
- This statement is made to the best of the author’s knowledge.
- Voisine, slip op. at 10.
- See, e.g., Giles v California, 554 U.S. 353, 377 (2008) (plurality holding that abuser’s murder of victim does not constitute “forfeiture by wrongdoing” of the right to confront the witness, because at early common law forfeiture was limited to intentional witness tampering).
- Brief of the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP) et al. at 25, Giles v. California, 554 U.S. 353 (2008) (No. 07-6053), http://www.dvleap.org/LinkClick.aspx?fileticket=GzQU04-Vpno%3d&tabid=179. See also Davis v. Washington, 547 U.S. 813, 814, 834 (2005) (excluding some post-incident admissible hearsay by a battered woman about her assaulter under the Confrontation Clause and noting that the Court is “unaware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not involve testimony as thus defined”).
- United States v. Voisine, No. 14-10154, slip op. 1 (U.S. June 27, 2016) (Thomas, J., dissenting).
- Id. at 18 (citation omitted).
- United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014).
- District of Columbia v. Heller, 554 U.S. 570 (2008).
- Id. at 627.
- U.S. Const. amend. II.
Joan Meier, Response, Voisine v. United States: The Supreme Court Just Says No—Again—to Domestic Abusers Seeking to Possess Firearms, Geo. Wash. L. Rev. On the Docket (June 30, 2016), http://www.gwlr.org/voisine-v-united-states-the-supreme-court-just-says-no-again-to-domestic-abusers-seeking-to-possess-firearms.