Explore The NRA Universe Of Websites

Second Amendment as Second-Class Right? A Dismal Warning

Friday, March 4, 2016

Second Amendment as Second-Class Right? A Dismal Warning

A case involving the scope of firearm prohibitions prompted Supreme Court Justice Clarence Thomas to break his more than decade-long silent streak on the bench. Justice Thomas last asked a question in February 2006, but he made headlines on February 29 by asking a question during oral argument in the case of Voisine v. United States. Unfortunately, commentators seized on the fact that he spoke at all, rather than the troubling implications of what he had to say.

The Voisine case arises out of the prohibition in the Gun Control Act, 18 U.S.C. §922(g)(9), which prohibits those convicted of a “misdemeanor crime of domestic violence,” as that offense is defined, from possession of firearms and ammunition.

The defendants in Voisine had been convicted of domestic violence under Maine’s simple assault statute, which defines “assault” as including “intentionally, knowingly, or recklessly caus[ing] bodily injury or offensive physical contact” to another person. Neither had used a firearm or weapon of any kind in committing the offense. The question before the Court is the scope of the federal definition and whether it extends to misdemeanors which include reckless conduct as well as more deliberate conduct where there is an intent to harm. (Under that formulation, for example, an individual who injures a family member while recklessly driving could commit a qualifying domestic violence offense, potentially resulting in a permanent ban on firearm possession.)

As Assistant U.S. Solicitor General Ilana Eisenstein was winding up her argument in support of the expansive interpretation, Justice Thomas interjected to ask that she identify another “constitutional right that can be suspended based upon a misdemeanor violation of a State law.” While she struggled to conceive of a responsive example, Justice Thomas persisted in his line of questions, noting, “[Y]ou’re saying that recklessness is sufficient to trigger a … 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.”

Apart from being a stark reminder that the Court today is not what it was four weeks ago before Justice Antonin Scalia’s untimely death, this signals just how close the Court may be to undermining the Second Amendment interpretation offered in District of Columbia v. Heller in 2008. Only four of the current eight justices joined the late Justice Scalia’s majority opinion in Heller, recognizing that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Since then, several lower courts have chipped away at or ignored Heller’s fundamental premise.

Justice Thomas had previously warned of this slide towards what he called “relegating the Second Amendment to a second-class right,” in his dissent over the Supreme Court’s refusal to hear the “assault weapons” ban case, Friedman v. City of Highland Park. Joined by Justice Scalia, he observed that the “Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.”

As we pointed out in an earlier alert, given these numbers, “future appointments to the Court will determine whether Heller is overturned, limited to nothing more than the possession of a handgun for protection within the home, or expanded to expressly protect the right to keep and bear all arms that are necessary for the entire range of defensive purposes, as the Framers of the Bill of Rights intended.”

The decision in the Voisine case is pending. So is the future of the Second Amendment.

TRENDING NOW
Declassified Document: Biden-Harris Administration Targeted Gun Owners and Second Amendment Rights Under “Domestic Terrorism” Pretext

News  

Monday, April 21, 2025

Declassified Document: Biden-Harris Administration Targeted Gun Owners and Second Amendment Rights Under “Domestic Terrorism” Pretext

On April 16, Director of National Intelligence Tulsi Gabbard made good on a promise to expose the ways in which the Biden administration had weaponized the federal government against its political adversaries by releasing the Biden-era “Strategic Implementation Plan ...

Trump Administration Revives Federal Firearm Rights Restoration Provision

News  

Friday, March 21, 2025

Trump Administration Revives Federal Firearm Rights Restoration Provision

On March 20, the U.S. Department of Justice (DOJ) published an interim final rule entitled, Withdrawing the Attorney General’s Delegation of Authority. That bland title belies the historic nature of the measure, which is aimed at reviving ...

Trump DOJ Creates Second Amendment Task Force to Undo Damage of Biden Era

News  

Monday, April 14, 2025

Trump DOJ Creates Second Amendment Task Force to Undo Damage of Biden Era

Last week, the U.S. Department of Justice (DOJ) formally announced the creation of a Second Amendment Task Force with Attorney General Pam Bondi declaring, “It is the policy of the Department of Justice to use its full ...

Federal Court in Massachusetts Enforces Range Access Statute in Pathbreaking Case

News  

Monday, April 21, 2025

Federal Court in Massachusetts Enforces Range Access Statute in Pathbreaking Case

It has happened before in Massachusetts: A small, hardy band of armed Americans faces off against elements of the most powerful military in the world and commits a revolutionary act that paves the way for ...

Germany Strips “Extremist” AfD Members, Supporters of Gun Licenses, Guns

News  

Monday, April 14, 2025

Germany Strips “Extremist” AfD Members, Supporters of Gun Licenses, Guns

It’s been only a few years since the San Francisco Board of Supervisors passed a resolution calling the NRA a “domestic terrorist organization.” 

DOJ Drops Controversial NFA Charge Against Pardoned Jan. 6 Protestor

News  

Monday, April 21, 2025

DOJ Drops Controversial NFA Charge Against Pardoned Jan. 6 Protestor

Last February, NRA-ILA’s reporting exposed the case of Taylor Taranto, a pardoned January 6 protestor separately arrested on firearm charges in Washington, D.C. 

Canadian Appeals Court Upholds 2020 Gun Bans – “Reasonable” and “Rationally Connected to a Legitimate Objective”

News  

Monday, April 21, 2025

Canadian Appeals Court Upholds 2020 Gun Bans – “Reasonable” and “Rationally Connected to a Legitimate Objective”

On March 9, when Mark Carney was selected to replace Justin Trudeau as Canada’s Prime Minister and the new Liberal Party leader, he ignored the opportunity the situation presented to jettison his predecessor’s useless and expensive “assault-style ...

Colorado: Governor Polis Signs More Gun Control into Law

Monday, April 21, 2025

Colorado: Governor Polis Signs More Gun Control into Law

Continuing the trend of this legislative session, Governor Jared Polis has signed two more gun control bills into law: House Bill 25-1238 and House Bill 25-1133.  

Legal Update: April 2025 Litigation Update

Monday, April 21, 2025

Legal Update: April 2025 Litigation Update

In the first quarter of 2025, the National Rifle Association filed three new lawsuits and five amicus briefs, while continuing to litigate dozens of ongoing lawsuits across the country.

Washington: Permit to Purchase Bill Passes Senate

Tuesday, April 15, 2025

Washington: Permit to Purchase Bill Passes Senate

On Monday, April 14th, the Senate passed House Bill 1163, the permit-to-purchase scheme, along party lines. It will now return to the House for concurrence with amendments made in the Senate. NRA members must urge ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.