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March 27th, 2017

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A fascinating alliance on the Supreme Court

Noah Feldman

By Noah Feldman Bloomberg View

Published June 29, 2016

A fascinating alliance on the Supreme Court

It's not often that the Supreme Court's most liberal and most conservative members are the only two justices dissenting from an opinion joined by the rest. But that happened in Monday's fascinating decision holding that a misdemeanor conviction for "reckless" domestic assault is enough to ban someone from owning a gun. The court's majority was happy to interpret domestic violence expansively. For very different but overlapping reasons, Justices Clarence Thomas and Sonia Sotomayor disagreed.

The case involved a federal law that makes it a felony to possess a gun if you've been convicted of misdemeanor domestic violence. Ordinarily, the federal ban on gun possession only kicks in if you have committed a state or federal felony. For reasons having to do with the dangers of a gun in a home where domestic violence has occurred, this law extends the ban to misdemeanor convictions. QuickTake Guns in America

Those misdemeanor domestic violence convictions are necessarily state law convictions. There's no federal domestic violence law, and the Supreme Court held in the year 2000 that domestic violence fell outside Congress's authority to enact laws in the Violence Against Women Act.

So this case was one of those rare occasions where the Supreme Court gets to weigh in on the law of domestic violence.

The federal law extends the gun ban to anyone convicted of a misdemeanor in which there is a specified domestic relationship in which the crime "has, as an element, the use or attempted use of physical force."

Two years ago, the Supreme Court interpreted that provision, and held that knowing, intentional use of force counted. But it didn't then answer the question whether a conviction for reckless misdemeanor domestic violence would count as a "use of physical force" under the federal law.

The defendant in the case, Stephen Voisine, pled guilty in Maine in 2004 to assaulting his girlfriend. Maine law makes it a crime to "intentionally, knowingly or recklessly cause[] bodily injury or offensive physical contact to another person."

The key word here is "recklessly." Because Maine law allows conviction where the act of domestic violence was not intentional or knowing, but reckless, the Supreme Court had to address the question of whether this conviction would trigger a ban on gun ownership for Voisine.

In practice, this mattered a great deal to Voisine, who was investigated by federal authorities for killing a bald eagle but was charged with the federal crime of being in possession of a firearm while having been convicted of domestic violence.

As it turns out, Maine law isn't an outlier. Some two-thirds of the states define assault in a way that includes reckless conduct. The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law. If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states.

Justice Elena Kagan wrote the opinion for the court. Her approach, which she has made something of a trademark, was to focus on the plain meaning of the words -- giving hypothetical examples. The phrase "use of physical force," she said, requires a voluntary action. But it includes actions that we would ordinarily characterize as reckless.

Her two examples were both hypothetical instances of domestic violence. In one example, she distinguished a person who drops a soapy dish, breaking it in the process, from someone who "throws a plate in anger against the wall near where his wife is standing." The dish-dropper didn't "use force." But the plate-thrower did, even if he didn't knowingly intend to injure his wife. Yet the thrown plate could easily become a basis for a reckless assault charge if it managed to injure the man's wife.

Kagan's second example was of a man who "slams the door shut with his girlfriend following close behind." That's a use of force, she said, "regardless of whether he thinks it absolutely sure or only quite likely that he will catch her fingers in the jamb."

Thomas's dissent quoted the dictionary to say that "use" requires "an inherently intentional act," as opposed to a reckless one. And "use of force," he added, implies an intentional use.

A car accident, Thomas argued, ordinarily wouldn't be called a use of force, even if people were injured. And he quoted one of Justice Oliver Wendell Holmes's famous aphorisms: "even a dog distinguishes between being stumbled over and being kicked."

Finally Thomas said that what he dubbed Kagan's "Angry Plate Thrower" and "Door Slammer" had indeed intentionally used force -- but against the plate and the door respectively, not against the wife and the girlfriend.

Thomas' vote can be explained partly on the basis that he doesn't want to infringe gun ownership. He added a final section to his dissent suggesting as much. But Sotomayor, who didn't join that section of Thomas's dissent, can't have been actuated by this motive. So why did the court's most liberal member join its most conservative?

What Thomas and Sotomayor share in common -- along with being the court's two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.

Thomas's worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor's concern is more with the status of the individual defendant, who may be subject to long federal sentences.

Yet it's noteworthy that both right and left saw the court's decision as potentially troubling. Neither Thomas nor Sotomayor is an apologist for domestic violence. But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence. In their own way, each tries to be a conscience on a court that often acts pragmatically. This time, the two consciences converged.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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