This writer only wishes he could wear the mantle of constitutional scholar. The best he can do is claim the appellation: constitutional observer. Today, I picked up the majority opinion decided by Justice Elena Kagan with the intention of reporting upon how the Court interpreted Maine’s domestic abuse statute in the context of the federal crimes code and its generation long prohibition against allowing persons convicted of misdemeanors of “domestic violence” from possessing a firearm.
There are few subjects of greater controversy today than whether the second amendment can or should have limitations. This is not the place to vex that issue. My intention was simply to report upon how this 4-2 decision would affect Pennsylvanians. But that can wait another day. What captured my eye and my imagination today was how the highest court decided this case and what politicians of all stripes can learn from the rather oddly structured institution we call the Supreme Court of the United States.
Today’s decision has two dissenters. Even they do not agree on all points but when I saw that the dissenters were Justices Thomas and Sotomayor, I could not help but race to read the dissent crafted by these two politically disparate individuals.
The dissent is written by Justice Thomas. The term “domestic violence” is one pregnant with judgment. Congress attempted to limit that term by stating that before a gun would be denied to a person convicted of a misdemeanor involving domestic violence, the violence had to involve the use of “physical force” or an attempt at same. 18 U.S.C. 921(a)(33)(A).
The case decided today has a history. It has been to the Supreme Court before in the form of Armstrong v. U.S. 572 U.S. (2014). The Supreme Court had remanded the case and it came back this time as Voisine v. U.S. with the question being whether a misdemeanor conviction based upon “reckless” rather than intentional assault in domestic violence setting was sufficient to deny the misdemeanant the right to a weapon under federal law.
Kagan’s majority opinion offers a wonderfully useful paradigm. If a gun owner slips while washing a plate and the plate shatters hitting and cutting his spouse, he may have been negligent but he cannot be said to be reckless. If, however, in a fit of anger he throws the plate at the wall and it happens to hit and cut his spouse, he has now acted recklessly. People who throw plates intentionally must accept the fact that their act is reckless and can do substantial harm. That is a use of force that warrants removal of gun rights if the spouse is harmed even though the intent to harm itself was never shown. The majority opinion says that if a defendant loses his grip on a door such that it strikes his domestic partner in the face, he has not employed physical force. But if his anger causes him to slam the same door and it happens to strike her in the face, his reckless behavior is physical force sufficient to allow courts to revoke second amendment freedoms. The majority concludes that reckless conduct is “no less” forceful than conduct undertaken knowingly and intentionally.
This is where strange bedfellows Thomas and Sotomayor jump out of the semantic sack. They reply that the angry plate thrower and the door slammer knowingly unleashed physical forces but observe that by definition, their conduct did intend harm. But the harm was directed at inanimate objects. To “use force” means to intend the force as a device to punish or control the conduct of another person. The door slammer and plate thrower described by the majority are not using force. As the dissenters put it, the majority conflates volitional conduct with intentional conduct. An intentional act is designed to inflict harm. A reckless person acts in derogation of understandable risk. To the dissenting justices the term “use” coupled with “force” means with the intention to cause harm, not merely conduct that happens to cause harm.
All of us know that we live in polarized times when it becomes more and more difficult to “reach across the aisle” in search of understandable consensus. We also know that there are few issues more polarizing than gun rights; a fact borne out by the votes in Congress last week following the tragedies in Orlando, Florida. What is remarkable about this ruling is the fact that on this most important of constitutional issues a Bush Republican and an Obama Democrat would set aside ideological differences to find common cause in the language we call “English.” It is what makes the Supreme Court as crafted by Justice John Marshall, a fascinating institution.