After remaining silent for a full decade of Supreme Court oral arguments, Justice Clarence Thomas asked several questions during a Monday hearing. The cause that inspired Thomas to break a ten year silence: men convicted of domestic violence who wish to own guns.
Voisine v. United States involves a fairly technical question of whether two men with previous domestic assault convictions are subject to federal law prohibiting individuals convicted of a “misdemeanor crime of domestic violence” from possessing firearms. Justice Thomas, however, appeared deeply troubled by the idea that these men may not be able to carry a firearm.
Noting that the right to carry a gun is ordinarily “a constitutional right” under existing law, Thomas began his questioning by asking if Ilana Eisenstein, the attorney arguing the case on behalf of the federal government, could “give me another area where a misdemeanor violation suspends a constitutional right.”
There are many possible answers to this question. The Supreme Court has long recognized that U.S. citizens have a constitutional right to travel within the United States, yet a person convicted of a misdemeanor could be arrested and jailed for up to a year. Similarly, the First Amendment protects a right of “expressive association” with other individuals, but such an association may be difficult to maintain while an individual is incarcerated. The Constitution also provides fairly robust protections for property rights, but someone convicted of a misdemeanor may lawfully be fined.
In any event, Thomas continued to press Eisenstein for several pages of the argument transcript. At one point, he appeared bothered by the fact that domestic abusers have their right to own a gun suspended indefinitely. At another point, he seemed to suggest that the particular domestic abusers at issue in this case should not lose their ability to carry guns because they’ve never actually “use[d] a weapon against a family member.”
Thomas appeared unmoved when Eisenstein pointed out that “individuals who have previously… battered their spouses, pose up to a sixfold greater risk of killing, by a gun, their family member.”
Justice Thomas has a record of near absolutism on the Second Amendment. Last December, while the nation was still mourning the mass killing of more than a dozen people at a facility for the developmentally disabled in San Bernadino, California — a crime that was committed with assault rifles — Thomas penned a dissenting opinion suggesting that assault rifle bans are unconstitutional.
Indeed, it now appears that Thomas believes that the Second Amendment should be read so broadly that even domestic abusers must be allowed to own guns. And that he is so committed to this cause that it is the only thing that he’s spoken about in ten years of Supreme Court hearings.