Today the Supreme Court handed down two decisions: The first is a monumental, headline-grabbing defeat for anti-abortion groups. The second is a highly technical case about gun rights that’s being mostly overlooked.
In the dissenting opinion for the latter case, Supreme Court Justice Clarence Thomas argues that convicted domestic abusers have been defrauded of their right to deadly weapons.
At-issue in Voisine v. United States is a technical question of whether two men with convictions for “reckless” domestic assault fall under a federal law prohibiting people convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. The law prohibiting domestic abusers from possessing firearms wasn’t the question under discussion — instead, the question was how far that law reached over certain states’ differing domestic assault laws.
Justice Thomas, however, was very concerned in arguments about the broader law that domestic abusers at large can’t have guns — breaking 10 years of silence on the Court to complain at arguments in February.
“Give me another area where a misdemeanor violation suspends a constitutional right,” he asked, later suggesting that the particular domestic abusers, in this case, shouldn’t lose their ability to carry guns because they’ve never actually “use[d] a weapon against a family member.”
The opinion of the court, delivered today by Justice Kagan, held that the law prohibiting gun ownership does extend to individuals convicted of reckless domestic assault. Thomas, predictably, authored the dissent, with Justice Sotomayor joining for the first two parts, which take issue with the majority on technical legal grounds.
In the third part, however, is where Thomas unrolls his broader complaint about the restrictions on gun ownership.
The law prohibiting gun ownership by those convicted of misdemeanor assault “is already very broad,” Thomas writes. “It imposes a lifetime ban on gun ownership for a single intentional nonconsensual touching of a family member…the majority seeks to expand that already broad rule to any reckless physical injury or nonconsensual touch. I would not extend the statute into that constitutionally problematic territory.”
The law, he argues, already robs people of their constitutional right to bear arms “simply because they pleaded guilty to misdemeanors.” As examples of people who might be divested from their Second Amendment rights, he uses as examples mothers slapping their children and family members texting while driving, though he acknowledges that “it may be true that such incidents are rarely prosecuted.”
Instead, the law Thomas is referencing is most often used against perpetrators of domestic violence such as spousal battery and abuse, for which it’s often difficult to obtain a felony conviction, and which are well-documented precursors to deadly violence.
Still, restricting those convicted of domestic assault from obtaining firearms, he argues, is a “cavalier” treatment of their constitutional rights.
“In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to “relegat[e] the Second Amendment to a second-class right.”
Many high-profile mass shooters have a history of domestic violence. In just a few, recent examples: The man who shot up the Pulse nightclub earlier this month, killing 49 and wounding 53, allegedly violently abused his first wife during their brief marriage. The man who attacked the Colorado Springs Planned Parenthood last year, killing three and wounding nine, had previously been charged with sexually assaulting a woman at knifepoint, and had reports and orders of protection filed against him for physically assaulting his wife and stalking his neighbor. A similar trend bears out in the story of the man who opened fire on a packed movie theater in Lafayette, Louisiana in July 2015: In 2008, his wife and daughter had filed orders of protection against him for “acts of family violence,” as reported by The Trace.
Most mass shootings (defined as a shooting with four or more casualties), however, take place outside the headlines. They’re private disputes, often with a clear track record of violence and assault escalating to a deadly incident. More than half of mass shootings involve a family member or intimate partner, according to five years of data compiled by The Huffington Post. Of those, 81 percent of the victims are women and children. Victims of domestic violence are 12 times more likely to be murdered when a gun is involved. According to the government attorney on Voisine vs. United States, “individuals who have previously… battered their spouses, pose up to a sixfold greater risk of killing, by a gun, their family member.”
The common thread linking many of America’s deadliest gun crimes is domestic violence, hence the federal law. Yet even when abusers are convicted of misdemeanor crimes for domestic violence — which don’t cover non-married partners who don’t live together or extended family members — and then fall under the Federal statue, implementation is difficult: If an abuser already has a gun, police have to know it — which is made difficult by the fact that not every state has a gun registry or gun sale database. And, without universal background checks, it’s very possible for those with domestic violence restraining orders to get guns even when legally prohibited.
America has a lot of problems with guns. Lack of access for domestic abusers is not one of them.