Virginia Villa, an assistant federal public defender, had endeavored without making much progress to convince the court that Congress, which wrote the gun-possession statute, could not have intended the statute to sweep so broadly. So confident was Eisenstein, her opponent, that she was preparing to close up shop early.
“If there are no further questions,” she began.
At this point the entire Supreme Court chamber sailed into the unknown.
“Ms. Eisenstein, one question,” said Justice Clarence Thomas.
Though the vigilant marshals keep a tight lid on noise, it’s safe to say that not since Clarence Darrow for the defense called prosecutor William Jennings Bryan himself to the stand has an American courtroom been so startled. Thomas has not asked a question in court since February 22, 2006. His silence has been the subject of speculation, ridicule, and indignant denunciation. (Jeffrey Toobin of The New Yorker two years ago called it “disgraceful.”) Others, including me, had thought it instead a sad loss for the Court. But it’s safe to say that nobody expected Voisine v. United States to be the case that would break the streak.
Yet here Thomas was, and his question was far from random. That’s because under the surface of the case lies the issue of guns. When the defendants first petitioned the Court for review, they had posed as a question for the Court whether the federal gun-possession statutes are “unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.”
When the Court granted review last October, however, its terse order had explicitly rejected that question, limiting argument to the issue of whether a “reckless” act of domestic violence could qualify as a trigger for the statute.
The courtroom was about to learn that Clarence Thomas wasn’t so sure about that limitation. He now asked Eisenstein, “Can you give me another area where a misdemeanor suspends a constitutional right?”
Eisenstein, as gobsmacked as anyone else, made somewhat incoherent noises until Thomas elaborated. “You’re saying that recklessness is sufficient to trigger a violation— 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. . . . Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?”
Eisenstein suggested that some criminal sentences carry with them limitations or suspensions of the rights of free speech. Thomas pressed her. The gun-possession ban, he pointed out, is, if not lifelong, at least indefinite. And the ban takes effect whether or not the defendant actually used a gun in the act of domestic violence.
“Well, Your Honor, I think the studies that Congress relied upon in formulating the misdemeanor crime of domestic-violence ban...were directly about the use of a gun because what they showed is that individuals who have previously been battered their spouses, pose up to a sixfold greater risk of killing, by a gun, their family member.”