Mimesis Law
22 October 2021

We Should Be Embarrassed That We’re Even Talking About Clarence Thomas

Mar. 2, 2016 (Mimesis Law) — Did you realize that federal law prevents anyone convicted of certain state misdemeanor crimes of domestic violence from possessing a firearm? Your state might not make anyone a prohibited possessor for any misdemeanors at all, and you might have violated no federal law committing your prior offense, yet federal law can strip you of your right to bear arms nonetheless. A lot of people don’t realize that. It might be something many people would be interested to know.

Moreover, a misdemeanor domestic violence conviction may even serve to prevent you from possessing a firearm if the mens rea for the crime is recklessness, that it’s a crime you can commit by consciously disregarding a risk rather than doing something intentionally or knowingly, despite the fact that the same federal law requires as an element the use or attempted use of physical force. It seems awfully difficult to use or attempt to use force if you’re just being reckless, right? Can mere conscious disregard constitute use? If you just disregard the risk that touching might end up rising to the level of force, is that really using it?

This isn’t just some pie-in-the-sky theoretical discussion. It doesn’t just matter because some person with an old domestic violence conviction has decided he’d like to have an Uzi for self defense and is willing to fight for that right to the bitter end. No, the federal government has actually charged people with federal felonies simply for possessing firearms subsequent to state domestic violence misdemeanors involving reckless conduct. In fact, that’s exactly the situation for two individuals from Maine whose cases, combined into Voisine v. United States, are presently pending before the Supreme Court of the United States.

The opinion below from the First Circuit, admittedly, isn’t exactly a page turner. It does discuss the uniqueness of domestic violence offenses and the potential for escalation, though, which certainly forecasts the court’s conclusion. Talking about how awful an offense is rarely signals that a court is about to take a thoughtful, rights-centric approach and make great law. However, the case mostly turns on statutory interpretation. The court looks at the legislative history of the federal law in question, and it discusses some prior authority in great detail. The dissent isn’t a real zinger either, mostly discussing precedent, and even looking at every other circuit and how they’ve approached similar situations. The First Circuit ultimately affirmed the judgments of guilt for the defendant, and the case is now before the Supreme Court.

Considering that they just had oral arguments, you’d probably think the news would be reporting the case, right? Reporters are probably covering the nuances of the federal and state laws in question, right? They’re probably talking about pressing domestic violence issues that affect countless people every day right?

Sadly, no.

By far, despite a piece here and there, and some other places providing commentary about domestic violence in general and Voisine specifically, the news surrounding the case since oral argument has, at its root, nothing to do with the facts of Voisine, the law in question, or even its broader policy implications. NPR reports on what people really care about:

Clarence Thomas Asks 1st Question From Supreme Court Bench In 10 Years

Hundreds, maybe even thousands, of news articles focus not primarily on the federal defendants whose cases are being heard or the issues involved, but on just one of the individual’s hearing the case. The content of that NPR article isn’t much better:

Supreme Court Justice Clarence Thomas drew gasps on Monday when he asked several questions during oral arguments.

Thomas, who hadn’t asked a question since Feb. 22, 2006, broke 10 years of near silence during a case, Voisine v. U.S., involving a federal law preventing people convicted of misdemeanor domestic violence from owning firearms.

The justices were hearing appeals from two Maine men who say their guilty pleas for hitting their partners should not disqualify them from gun ownership. The hourlong session was coming to a close when Thomas leaned forward and spoke into the microphone to ask Justice Department lawyer Ilana Eisenstein whether a misdemeanor conviction of any other law “suspends a constitutional right,” The Associated Press reports.

It seems that major news outlets might as well be People Magazine or the National Enquirer when it comes to Voisine.

Who cares about our Second Amendment rights? It simply adds a bit of context to the real news of a guy with a robe finally asking a question after ten years. That he broke his silence is the story. That federal law prevents people convicted of certain misdemeanor domestic violence offenses from owning firearms is some bonus fluff.

The article describes the justice hearing the case as leaning forward and speaking into the microphone, no doubt something intended to make it feel like you’re there. How exciting! His first question in forever! The article, of course, is thin on legal analysis. It omits that sort of detail from the facts that led to the case altogether.

There’s an obsession in our society about people, and a mild neglect when it comes to ideas. It’s especially troubling in light of the fact the ideas are really what is going to impact our lives in the long run. An old quote comes to mind:

Great minds discuss ideas; average minds discuss events; small minds discuss people.

We live in an age where you can watch some hour-long cooking shows and learn almost nothing at all about cooking. You will know which cook hates which other cook, whose dish some other people liked, and who had to go home at the end, but you couldn’t even begin to make one of the recipes involved. Watching vapid but hot-tempered people argue ad nauseum about what they did or said to each other seems to be a foolproof recipe for a successful franchise. Ideas, on the other hand, are boring. Who did or said what to whomever else is where the money is.

It would be nice if the law was better than that, but sadly, it seems to be devolving just as rapidly. That the rights of individuals across the nation now obviously play second fiddle to the inconsequential actions of one guy deciding cases involving those rights should be alarming. Clarence Thomas only matters to the extent that he is capable of appreciating and fairly ruling on the issues before him. The more emphasis we place on what he does rather than what he thinks, the farther we go astray. We need to start caring about the content of the message rather than the messenger.

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  • Bob
    2 March 2016 at 11:16 am - Reply


    While I agree that the whole “Thomas Speaks” coverage has glossed over the important issues at stake in Voisine, I think there are two reasons for it:

    1. The 2d Amendment issue brought up by Thomas is not squarely presented in Voisine. If you look at the briefing by both sides, the entire case is about statutory interpretation, not the larger 2d Amendment issue. Thomas certainly brought it up, but it wasn’t briefed by the parties and I seriously doubt it will be addressed in the ultimate opinion.

    2. Thomas speaking is not in and of itself important, but it may signal that he is taking (or trying to take) Scalia’s place as the intellectual leader of the conservative wing of the Court. I don’t think it’s any coincidence that Thomas spoke just after Scalia’s death.