Justice Thomas Asks Questions

Justice Clarence Thomas asked questions of a government lawyer during oral arguments yesterday. It was the first time in 10 years he's asked a question. What was the case? A gun rights case.

"Ms. Eisenstein, one question," Thomas said. "This is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?"

What misdemeanor is that? The federal law that prohibits someone convicted of misdemeanor domestic violence in state court from owning a firearm.The case is Voisine v. United States.

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    Please note that Justice Thomas's questions (5.00 / 4) (#3)
    by Peter G on Tue Mar 01, 2016 at 12:27:12 PM EST
    favor the defendants in the case against the government, and picked up on an issue advanced on their behalf by the Federal Public Defender who represents them. The only amicus brief favoring these defendants was filed by a "gun rights" group (not even by criminal justice groups). The (many) friend-of-the-court briefs filed on the government's side came from anti-domestic-violence groups. Most of the questioning of the lawyers (until the last ten minutes, when Thomas took over) was from the three women justices.  They focused on the domestic violence prevention justification for the law, and how that bears on the question of interpretation of the statute that the Court has to decide. I predict a decision in favor of the government, not by a close vote, perhaps written by Kagan, and perhaps taking the opportunity to begin the process of cutting back on the more extravagant readings of Heller, by endorsing gun-possession limitations like this as a form of "reasonable regulation" of Second Amendment "rights," in the same way that obscenity and libel laws are permissible restrictions on First Amendment rights.

    Now I'm more confused... (none / 0) (#6)
    by Mr Natural on Tue Mar 01, 2016 at 04:43:53 PM EST
    I thought the defendant was the Gov't and the Petitioners were the other side.

    Also, is it common for a White Shoe firm like Sidley-Austin to take part in proceedings like this - as "in forma pauperis - according to an October 30, 2015 petitioner's motion?"

    It's difficult to tell what's going on.

    Anybody else recognize the firm name?  Sidley Austin was where Michelle Obama worked.


    In the Supreme Court, the caption (none / 0) (#9)
    by Peter G on Tue Mar 01, 2016 at 05:29:32 PM EST
    reflect the positions of the parties in that court: in this case (Voisine), petitioners=the convicted men, who "petitioned" to bring their appeal before the Court, and respondent=the U.S. govt represented by a DoJ officer called "the Solicitor General." For simplicity and clarity (I thought) I referred to the convicted men who are appealing as "the defendants" (as they are generally called, since they are defending themselves against criminal charges). I referred to the prosecution side as "the government" (as they are typically referred to in federal court, both at the trial level and on appeal). The Sidley Austin firm's D.C. office has an active Supreme Court practice and one of the largest commitments to pro bono work in that setting. In particular, they often provide back-up research, editing, and argument preparation (for free) to federal public defenders and other federal appointed counsel with Supreme Court cases on behalf of indigent criminal defendants. Not surprising at all.

    Thank you. (none / 0) (#13)
    by Mr Natural on Tue Mar 01, 2016 at 07:17:16 PM EST
    I finally figured out where Virginia Villa's petition began and ended.  Her original petition for a writ of certiorari was more illuminating than the formal brief filed on Dec. 17, 2015.  The formal brief was jam packed with language like this:

    Offensive-contact battery (that is, battery that does not cause bodily injury) at common-law required not only the actus reus of offensive contact, but also the mens rea of intent. Thus, one could not commit common-law battery through offensive touching with any state of mind, but only through intentional offensive touching.

    Before I read Villa's brief I couldn't tell who'd done what or when.  I'd thought they were petitioning for permission to own guns.  I didn't know this was the end stage of appealing their Federal convictions.  Hence, my misunderstanding.

    One of the defendants landed on the Federal radar for allegedly shooting an eagle.  What a[n alleged] jerk.

    I noticed the Commerce Clause got invoked in the brief.  Ten or fifteen years ago there was a Commerce Clause case that was supposed to lead to the unraveling of a bunch of Federal legislation and Agencies.  Whatever happened with that?


    Yup, US v Lopez (1995) - invalidated (5.00 / 1) (#15)
    by Peter G on Tue Mar 01, 2016 at 09:56:30 PM EST
    the federal crime (with no constitutional basis) of possession of firearm near a school. Pretty much a fizzle. Precedent was applied about five years later to invalidate part of the federal "Violence Against Women Act." Then pretty much not to anything else. Although the Commerce Clause part of Chief Justice Roberts' opinion analyzing the constitutionality of Obamacare was along the same lines. The power of Congress to regulate what it sees as affecting interstate commerce to any degree (e.g., intrastate cultivation of marijuana, even for personal, medicinal use) remains pretty secure.

    Big thanks to Peter G (5.00 / 4) (#16)
    by Jeralyn on Tue Mar 01, 2016 at 10:19:48 PM EST
    for his comments in this thread. Well written and most informative.

    Thanks, J (none / 0) (#21)
    by Peter G on Wed Mar 02, 2016 at 10:33:20 PM EST
    I appreciate your shout-out.

    So... (none / 0) (#1)
    by Mr Natural on Tue Mar 01, 2016 at 06:23:18 AM EST
    Is there another area where conviction for a misdemeanor suspends a constitutional right?

    What's the underlying theory?

    Wasn't the Constitution written to limit Congressional profligacy in proscription and prescription?

    Please ignore the last two questions. (none / 0) (#8)
    by Mr Natural on Tue Mar 01, 2016 at 04:58:00 PM EST
    I like that he said it would only be one question. (none / 0) (#2)
    by ruffian on Tue Mar 01, 2016 at 08:53:41 AM EST
    For the next ten  years? Or at least until the next gun rights case.

    A real milestone. (none / 0) (#4)
    by KeysDan on Tue Mar 01, 2016 at 02:05:23 PM EST
    It has been 45 years, at least, since any other member of the Supreme Court even went a single term without asking a question.  Free at last. Scalia's journey, so long and so far, to consult with the founders and validate, once and for all time, his originalism, passed the baton to Thomas prior to placing his last shotgun in that big rack in the sky,while at Cibolo Creek Ranch.  

    make it a felony (none / 0) (#5)
    by thomas rogan on Tue Mar 01, 2016 at 03:34:54 PM EST
    All you have to do is upgrade domestic violations to felonies and then current gun control laws would apply.  Maybe it would prevent some domestic abuse as well.

    Someone who can't be trusted not to strike (none / 0) (#7)
    by Mr Natural on Tue Mar 01, 2016 at 04:57:04 PM EST
    their loved ones (Battery was discussed in the brief) should not be trusted with a gun.

    Bruises heal; Gunshots are forever.


    "Current gun control laws" already apply (none / 0) (#10)
    by Peter G on Tue Mar 01, 2016 at 05:36:07 PM EST
    to a "misdemeanor crime of domestic violence." The issue in the case argued yesterday is whether that extension of the federal gun-possession ban in DV cases was meant to reach all such misdemeanors (including those where the defendant's conduct was merely "reckless" of causing harm) or only those misdemeanors where the defendant acted intentionally. A fine line.

    One would also wonder (none / 0) (#11)
    by Mr Natural on Tue Mar 01, 2016 at 06:02:34 PM EST
    whether it would matter in a future case that a "reckless" version of misdemeanor battery had been the result of plea bargaining down an "intentional" version of misdemeanor battery.

    No, it wouldn't (none / 0) (#12)
    by Peter G on Tue Mar 01, 2016 at 07:03:29 PM EST
    The applicability of the ban depends on the nature of the conviction, not on the facts of the case.

    You've given me a glimpse of something (5.00 / 1) (#14)
    by Mr Natural on Tue Mar 01, 2016 at 07:33:20 PM EST
    I'd long wondered about.  How the appeals process could proceed without "the facts of the case" is something we non-lawyers hear hints of but it has always puzzled me.  

    Villa's brief struggles to achieve that abstraction.  The details of the two defendant's state crimes are nowhere (that I could find) described in the brief.  All the reasoning proceeds using only the titles of laws, descriptions of the actions defined as criminal, but no details.  

    It's Terra Incognita for me.  With any continued luck, it will remain that way.


    Time for President Obama (none / 0) (#17)
    by KeysDan on Wed Mar 02, 2016 at 11:37:35 AM EST
    to nominate someone to fill that empty chair next to Thomas.   He has consulted and consulted with the Republicans. So, he has done what he can.  Now move.   Not too soon, GW Bush nominated a replacement for the deceased Rehnquist, two days after he died.  Not that Bush is a good model, but still.

    Of course! (none / 0) (#18)
    by NYShooter on Wed Mar 02, 2016 at 02:23:42 PM EST
    Obama's penchant for surrendering before the first shot being fired has been my biggest complaint about his approach to the Presidency.

    maybe he should take Bully-Pulpit lessons from Donald Trump. Can you picture him cowering at the thought of having to confront those mean Republicans?


    It seemed as if (none / 0) (#19)
    by KeysDan on Wed Mar 02, 2016 at 03:43:41 PM EST
    President Obama has learned his lesson of late, so I am hoping that this consulting with these Republican block-heads is part of a process of going the extra, extra mile.  Now, he can act as he wants, no need to pick a Republican Nevada governor, or anyone else other than a qualified, liberal who has a  stomach for the confirmation proceedings. Should the nomination get that far.  Hope springs eternal.  

    I read today that the FBI (none / 0) (#20)
    by caseyOR on Wed Mar 02, 2016 at 06:22:33 PM EST
    is vetting Judge Jane Kelly, a 51 year old former public defender who is currently a federal judge in Iowa. Senator Grassley was an enthusiastic supporter when Kelly was nominated for her current position. She won fairly easy confirmation by the Senate in 2013.

    She is a graduate of Harvard Law, a classmate of Obama's. I would prefer a SC justice who went to a non-Ivy law school, but I am excited at the idea of a criminal defense lawyer on the Court.

    Any of our lawyers know anything about Kelly?


    Here is some info... (none / 0) (#22)
    by MileHi Hawkeye on Thu Mar 03, 2016 at 11:17:25 AM EST
    She was also a crime victim (none / 0) (#23)
    by jbindc on Thu Mar 03, 2016 at 11:25:40 AM EST
    In 2004, she was attacked while jogging and brutally beaten.  She was left unconscious.

    Her attacker has never been identified.