Tuesday, March 01, 2016

Justice Thomas Oral Arguments in Voisine and Armstrong, III v. United States

[Pg. 35]

   JUSTICE THOMAS: Ms. Eisenstein, one question.

[Pg. 36]

   Can you give me ­­ this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor suspends a constitutional right?

   MS. [Assistant to the Solicitor General of the U.S. Dept. of Justice] EISENSTEIN: Your Honor, I ­­ I'm thinking about that, but I think that the ­­ the question is not ­­ as I understand Your Honor's question, the culpability necessarily of the act or  in terms of the offense ­­

   JUSTICE THOMAS: Well, I'm ­­ I'm looking at the ­­ you're saying that recklessness is sufficient to trigger a violation ­­ misdemeanor violation of domestic conduct that results in a  lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right.

   MS. EISENSTEIN: Your Honor, to address ­­

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

   MS. EISENSTEIN: Your Honor, while I can't think of specifically triggered by a misdemeanor violation, other examples, for example, in the First Amendment context, have allowed for suspension or limitation of a right to free speech or even free association in contexts where there is a compelling [Pg. 37] interest and risks associated in some cases less than a compelling interest under intermediate scrutiny.

   JUSTICE THOMAS: I'm ­­ this is a ­­ how long is this suspension of the right to own a firearm?

   MS.  EISENSTEIN: Your Honor, the right is suspended indefinitely.

   JUSTICE THOMAS: Okay. So can you think of a First Amendment suspension or a suspension of a First Amendment right that is permanent?

   MS. EISENSTEIN: Your Honor, it's not necessarily permanent as to the individual, but it may be permanent as to a particular harm. And here Congress decided to intervene at the first  instance that an individual is convicted of battering their family members because it ­­ it relied on substantial and well­documented evidence that those individuals pose a ­­ a long­term  and substantial  ­­

   JUSTICE THOMAS: So in each of these cases had ­­ did any of the defendants, or in this case Petitioners, use a weapon against a family member?

   MS. EISENSTEIN: In neither case did they, but these Petitioners ­­

   JUSTICE THOMAS: So that the ­­ again, the suspension is not directly related to the use of the weapon. It is a suspension that is actually indirectly [Pg. 38] related or actually  unrelated. It's just a family member's involved in a misdemeanor violation; therefore, a constitutional right is suspended.

   MS. EISENSTEIN: Yes, Your Honor, but I believe that in terms of the ­­ the relationship between Congress's decision to try to prevent domestic gun violence and its means of doing so ­­

   JUSTICE THOMAS: Even if that ­­ if even if that violence is unrelated to the use ­­ the possession of a gun?

   MS. EISENSTEIN: Well, Your Honor, I think the studies that Congress relied upon in formulating the ­­ the misdemeanor crime of domestic violence ban didn't ­­ were directly about the use  of a gun because what they showed is that individuals who have previously been ­­ battered their spouses, pose up to a six­fold greater risk of killing, by a gun, their family member.

   JUSTICE THOMAS: Well, let's ­­ let's say that a publisher is reckless about the use of children, and what could be considered indecent displace and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation. Could you suspend that publisher's right to ever publish again?

   MS. EISENSTEIN: Your Honor, I don't think [Pg. 39] you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher ­­

   JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

   MS. EISENSTEIN: Your Honor, I think that in terms of a ­­ the compelling purpose that was identified here, which was the prevention of gun violence and the individual nature of the ­­ of  the underlying offense, so here this isn't a misdemeanor crime directed at any person at large. These are misdemeanor batteries directed at members ­­ specified members of the ­­ of that  individual's family. Congress ­­

   JUSTICE THOMAS: Would you have a better case if this were a gun crime?

   MS. EISENSTEIN: Your Honor, I think  it would be perhaps a better case, except that the 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.

   Petitioners are good examples of this.

[Pg. 40]

   While they didn't reach, thankfully, the point where they were able to reach for a firearm and were prohibited from having a firearm under Federal law, they have each been convicted  multiple times of domestic violence offenses and possess the firearms in close proximity. So these aren't individuals who had long­ago convictions and are suffering from that ban. Congress  also contemplated exactly the lifetime nature of the ban that Your Honor suggested and left it in States' hands to resolve that by allowing States to expunge or pardon convictions in cases  where an individual either petitions to do so or in some States as a matter of course.

   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.

   JUSTICE  KENNEDY: I ­­ I suppose one answer is ­­ just a partial answer to Justice Thomas's question is SORNA, a violation of sexual offenders have to register before they can travel in  interstate  commerce. But that's not a prevention from traveling at all. It's just a ­­ it's a restriction. . . .

   But what of the REAL government compelling interest? Which is that ALL of our governments, and the departments operating under them, are BOUND by the Supreme Law of the Land. And this, despite whatever 'study' or 'compelling government interest' cock-and-bull story that is manufactured by them?

   ALL of these servants in our government are BOUND by solemn oath to obey the Supreme Law of the Land. And there is NOTHING in that instrument which releases them from that obligation - regardless of how 'compelling' it may be pretended to be. For the FACT remains:

"the right of the people to keep and bear arms shall not be infringed."

   And THAT is part of the Supreme Law of the Land - which is the ONLY "compelling interest" that has any bearing whatsoever here in the United States of America. If a person that has previously offended is again free. Then they not only have a right, but a duty to bear arms in their own defense. And our governments were expressly Constitutionally prevented from interferring with that specific right in any way, shape, or form.

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