Convicted domestic abusers are prohibited from owning firearms under federal law. We all agree with this. You habitually beat your wife, your kids, your partner, you should lose your right to keep and bear arms. Period. End of story.
However, while the spirit of the law is quite easy to understand, there are gray areas where everything is not as cut-and-dried as it ought to be. Let me point out an example of what I mean.
You’re on your way to pick up your son, Sean, from soccer practice. You’re running late. Your wife told you to pick him up at 5:30 p.m. It’s now 5:45 p.m.
Your impatient son texts your wife and rats you out. “Dad’s not here. Where is he?”
Your wife immediately starts blowing up your phone with text messages. “Why haven’t you picked up Sean, yet? Where are you? What have you been doing?”
Finally, you reach the soccer field. You see Sean waiting there, alone. He’s ticked off. He gets in the car and slams the door. “WTF, Dad!” he says.
“Hey, don’t swear.”
“I didn’t. I said, WTF.”
“OK, whatever,” you say, followed by, “I’m sorry I’m late.” As you pull onto the road, you begin to speed back home. Your wife continues to blow up your phone.
“Did you get Sean?” “Where are you?” “I’m pissed, I told you to get him at 5:30!!!”
You go to pick up your phone to respond, to send her a quick text that you picked up Sean and that the two of you are on your way home. As you pick up your phone, you take your eyes off the road for a split second and rear end the car in front of you. Sean’s head snaps forward and his head hits the dashboard, connecting with a jagged air vent that leaves a slight cut on his head. It bleeds.
Is that domestic violence? Are you now a domestic abuser? Should your Second Amendment rights be permanently stripped from you? Based on the recent Supreme Court ruling, the answer to all those questions is, YES!
Yup. That’s basically what the high court decided this week. Let me back up a bit and explain. See, as mentioned, federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. In other words, the use of physical force against a family member constitutes domestic violence. To explicate, you intentionally or knowingly slap your wife, you lose your guns. But, what happens when you recklessly use force against a family member, e.g. the texting while driving scenario? Should you lose your Second Amendment rights under that circumstance?
That’s the question the high court had to address in the case, Voisine v. U.S. (.pdf), because not all uses of force are intentional, some are indeed reckless, which means that an individual is aware of the physical harm an act may cause but not certain that harm will be caused. In the hypothetical case I illustrated above, you were generally aware that texting and driving may cause harm to you and your son, but at that moment you willingly ignored the risk. But because of the accident, it did cause harm.
Now, under the language of this decision, you could be charged with a misdemeanor crime of reckless assault and if you’re found guilty you will no longer be allowed to keep and bear arms.
“The federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the ‘use. . . of physical force’ against a domestic relation,” wrote Justice Elena Kagan in the majority opinion. “That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.”
The vote was 6-2 in favor of including reckless assault as part of the domestic abuser umbrella. The two dissenting votes came from Justice Clarence Thomas and—surprisingly—Justice Sonia Sotomayor. Thomas used the driving-while-texting example in his opinion.
“Today the majority expands §922(g)(9)’s sweep into patently unconstitutional territory. Under the majority’s reading, a single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership,” wrote Thomas in his dissenting opinion.
“And while it may be true that such incidents are rarely prosecuted, this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors,” he continued.
“We treat no other constitutional right so cavalierly,” Thomas wrote. “At oral argument the government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.”
Listen, we all believe that domestic abusers shouldn’t have firearms. But there is a difference between a domestic abuser who deliberately causes harm and one who causes harm by reckless or irresponsible behavior. By lowering the bar on what qualifies as domestic violence, more gun owners will lose their constitutional right to keep and bear arms.