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Justice Thomas Asks Questions at Oral Argument for 1st Time in 10 Years

Justice Thomas Asks Questions at Oral Argument for 1st Time in 10 Years

Possibly an act of respect for Justice Scalia, a champion of Second Amendment

(UPDATED: This post has been updated with the transcript of the oral arguments, at the bottom of this post. h/t Shall Not Be Questioned blog.)

In a turn of events sure to shock those who follow the US Supreme Court, Justice Clarence Thomas has broken with his 10-year-long record of declining to engage in oral argument, reports USA Today.

Only once in the last 10 years has Justice Thomas made even the slightest remark during oral arguments, and that was merely a one-sentence aside made in jest to Antonin Scalia some three years ago.  Justice Scalia, a close friend of Thomas’, passed away two weeks ago.

The case which prompted Thomas to substantively engage in oral argument, Voisine v. US, centers on the Second Amendment.  Thomas choosing to break his habitual silence on this Second Amendment case may have been in homage to his friend Scalia, who greatly enjoyed displaying his wit in oral arguments.

The recently deceased Scalia was instrumental on crafting pro-Second Amendment decisions by the Supreme Court in recent years, including the acknowledgement of a Constitutional right to keep and bear arms for self-defense in the cases of Heller and McDonald.

The instant case involves a Federal law imposing a life-time ban on the possession of firearms applied to individuals who have been convicted of a violation of a state misdemeanor domestic violence provision.  Normally, only a felony conviction results in a lifetime ban, but domestic violence crimes qualify for a lifetime ban even if they are only misdemeanors.  Two Maine men so convicted argue in this case that their lifetime bans violate their US Constitutional rights under the Second Amendment.

Thomas reportedly spoke 11 times and asked nine questions, in particular giving a hard time to Ilana Eisenstein, the assistant US Solicitor General defending the federal ban.

At one point he asked, “This is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”

This she was unable to do.

Here’s the transcript of the oral argument:

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If a constitutionally PROTECTED right can be suspended due to a misdemeanor violation, there is no end to the laws the left could write to strip every citizen of their rights.

In case you missed this when it was passed it is not a recently passed law. It was bad law then and it is bad law now but it was and is PC.

    I’m well aware that the law in question (Lautenberg Amendment) was passed almost 20 years ago (in 1997, during the Clinton administration, can’t wait to repeat THAT experience).

    It is the case before the Supreme Court that is current, and thus the impetus for this blog post.

    –Andrew, @LawSelfDefense

      I was aware it was the work of that great supporter of the 2nd Amendment Bill Clinton but had forgotten the date.

      buckeyeminuteman in reply to Andrew Branca. | March 1, 2016 at 7:51 am

      In the military, you have to fill out a federal form annually detailing any domestic charges which you have ever been found guilty of. The form goes up your chain of command and you are barred from working with firearms in any capacity. If you work in a support field like the majority of the military does, the repercussions are not as severe as you might think. However, if you are infantry, MP, or some other tactical career field, it’s game over.

        Gremlin1974 in reply to buckeyeminuteman. | March 1, 2016 at 5:11 pm

        Frankly I have a problem with the fact that any soldier isn’t at least infantry proficient with at least a rifle. When I was in the Army in the early 90’s the doctrine was that every soldier regardless of job was at base an infantryman and that is the way it should be.

        If you are to dangerous to be trusted with a firearm then you do not need to be a Soldier, Marine, Airman, or Sailor, period.

      William Armstrong III in reply to Andrew Branca. | March 2, 2016 at 12:26 am

      Actually it was 1996 and the Lautenberg Act. was slid in last minute into a Omnibus spending Bill with very little floor time for argument. Thanks to VP Biden.

As a staunch Second Amendment supporter, I think that a lifetime ban for ANY misdemeanor (and even some felonies) is overbroad. I would, in the spirit of compromise, say that a conviction for misdemeanor domestic violence could result in say, a one to three year ban as a part of sentencing.

    Of course, the truly egregious part of Lautenberg Amendment was that it applied retroactively. Thousands of police had pled guilty to misdemeanor DV on basis of advice from counsel of the limited consequences of doing so. Easier to take the plea, even against false charges, than spend thousands, tens of thousands, at trial, compel their children’s mother to testify against them in court, etc.

    They all lost their jobs as a result of Lautenberg.

    –Andrew, @LawSelfDefense

      Gremlin1974 in reply to Andrew Branca. | February 29, 2016 at 6:19 pm

      I am sure that helped the crime stats.

      DaveGinOly in reply to Andrew Branca. | March 1, 2016 at 1:47 am

      What happened to “No…ex post facto Law shall be passed”?

      Madison’s Notes make it plain that this prohibition pertains to criminal laws. If you can’t make ex post facto laws, how can you make ex post facto the punishment for breaking a particular law? Such is indistinguishable from the constitutionally prohibited act.

        Milhouse in reply to DaveGinOly. | March 1, 2016 at 5:48 pm

        It’s not a criminal penalty. It’s a determination that people who’ve committed these crimes are too dangerous to be allowed to have weapons. There’s no constitutional reason such a determination can’t be made retroactively. But as Mr Branca pointed out, many perfectly innocent people used to plead guilty to a misdemeanor, under legal advice that it was cheaper and easier than fighting a felony charge, and then suddenly found themselves barred from weapon ownership and out of a job.

      William Armstrong III in reply to Andrew Branca. | March 2, 2016 at 12:32 am

      The other bad thing about this that people don’t realize as in the case of Viosine his misdemeanor simple assault was before Laudenberg Act was passed. As you said they are going retroactive. But now if you have just a misdemeanor simple assault the Feds are applying Laudenberg anyway they can,so its not just misdemeanor domestic violence.

    OldNuc in reply to divemedic. | February 29, 2016 at 6:22 pm

    divemedic: If firearms are not involved in the DV then they should not be a part of any potential sentencing.

    I remember all the people who suddenly lot their jobs or almost lost their jobs before congress supposedly fixed this travesty.

    What is the over-under on a clear majority striking this stupid law down?

      I’m betting it’ll be a split decision, 4-4 straight down the middle. I’m not a lawyer, or even an amateur legal scholar, but from what I understand that means the lower court decision would be affirmed?

    For DV, the ACCUSATION removes your right to own fire arms. It is a banana republic area of US law.

    There is no forcing function for the accusation to be proven/prosecuted; the rules of evidence don’t apply. It is a defacto lifetime ban on owning fire arms… not to mention not being able to see your kids.

    This is a extremely common practice in divorce and custody battles. Apparently the ban “disappears” when the kids reach the age of majority.

    I know two guys going through this now. In both cases there was never so much as a 911 call, no witnesses, NOTHING, the accusations started flying during the custody battles. Because it this would thrown out in a criminal court, the divorce judge keeps it in the civil court.

People tend to forget that beneath that quiet exterior is a brilliant legal mind. Something that I think he probably uses to his advantage.

    Valerie in reply to Gremlin1974. | February 29, 2016 at 9:16 pm

    I’ve got one at home just like him.

    So long as his older, gregarious, talkative brother was available to carry the load, the younger one let him. The older one even ordered food for him, because he knew.

    Once the older one graduated high school and left home, voila! the younger one started to talk.

    Not that he talks all that much. His habit is to use as few words as possible.

I love Justice Thomas! What a remarkable man.

There’s an obvious functional change that probably plays into this. Thomas can’t sit back and let Scalia ask the pertinent questions anymore. If he doesn’t ask them himself, they might not get asked at all. So rather than a homage, this may be a necessity.

    Do oral arguments even matter? If so, SHOULD they? In what respect are the written briefs insufficient to lay out the issues and the law such that an oral argument is necessary to fill a gap?

    –Andrew, @LawSelfDefense

      HandyGandy in reply to Andrew Branca. | February 29, 2016 at 7:19 pm

      I’m surprised at you Andrew!
      SCOTUS oral arguments, are like parents who have fought.
      The parents aren’t talking to each other so they use the children as go betweens.

      The judges use the counsels to pass along their arguments.

      Most days, oral arguments do not matter. The issues are supposed to be fully briefed, and if they are, counsel rarely manage to add anything to them. The judges read the briefs and prepare to vote, beforehand. Counsel, however, love the arguments, and will not be deprived of them if at all possible.

      Every once in a long time, exceptional counsel can secure a changed vote at oral argument.

      Sanddog in reply to Andrew Branca. | March 1, 2016 at 1:16 am

      Oral arguments are used to compel left wing judges to ignore the constitution.

      William Armstrong III in reply to Andrew Branca. | March 2, 2016 at 12:48 am

      Maybe Thomas asked those question on the second to get it on record and to shock a few of the other Justice’s off the fence to his side.

      Lee Jan in reply to Andrew Branca. | March 2, 2016 at 6:30 am

      Oral arguments matter because it’s the only opportunity we got to see or on occasion hear what the Justices are thinking on any given matter. In this case Clarence Thomas’ question was important. Precisely why it has been given NO msm attention

    4fun in reply to irv. | February 29, 2016 at 9:40 pm

    IIRC, Thomas has said he reads all the briefs so orals aren’t as interesting as it is kind of repetitive. Also he said he sometimes asks other judges questions on the case and they ask the questions first.
    Glad we have him on the court.

If someone cannot be trusted with a firearm, they also cannot be trusted with any knife, scissors, an axe, a wrench, a screwdriver, a hammer, a baseball bat, a golf club, a brick, a rock, clenched fists, a concrete pavement, a pair of shoes or boots, poisonous chemicals, a motor vehicle, or lighter fluid, gasoline and matches. The list contains things that have been used to inflict serious injury and death. I am sure that there are other things that belong in that list. So, if the point is to reduce violence by removing access to the tools of violence by those who would use them illegally, perhaps a better idea is to follow due process and remove those who have illegally used those tools to inflict violence on others? If those people cannot be trusted with those things, then why are they free to be among us?

On tonight’s TV news I saw that someone awaiting a trial scheduled with the next two months for motor vehicle violence and whose driver’s license had been suspended, last night killed another with her motor vehicle. Should she be able to post bail, again?

    I concur. If a con can’t be trusted with a gun, don’t let him out of jail in the first place.

    It’s not complicated.

    –Andrew, @LawSelfDefense

    TX-rifraph in reply to Another Ed. | March 1, 2016 at 4:34 am

    From what I remember, POS Lautenberg added this crap quietly without any debate, I think during a conference on another bill. It was not about protecting anybody. It was about disarming the serfs.

      William Armstrong III in reply to TX-rifraph. | March 2, 2016 at 12:52 am

      Yes you are right. It was 1996 and was slid in by VP Biden as they were getting ready to vote on a Omnibus spending Bill and it had very little time on the floor for argument

SInce I suspect this will be 4-4, what was the appellate court ruling?

I love that picture of Justice Thomas. Dignity. Wisdom. Just a fantastic picture.

FYI, we’ve updated this post with the name of the relevant case (Voisine v. US) and a transcript of the oral arguments.

Thanks to the “Shall Not Be Questioned” blog:

–Andrew, @LawSelfDefense

It won’t matter here in MA; the state legislators will just change penalties from misdemeanors to felonies

    ecreegan in reply to Obie1. | March 2, 2016 at 8:20 am

    But it matters very much whether crimes for which convicts permanently lose their rights are called misdemeanors or felonies. We have centuries of precedents of felons no longer possessing the full rights of citizens. Opening that to misdemeanors opens the floodgates. Why stop at domestic violence? Shouldn’t everyone convicted of any violent crime lose their right to bear arms? And why should anyone not trusted with a gun be trusted with the vote? And now that we’re no longer stopping at felonies, why stop at misdemeanors? How can we trust anyone with a record of reckless driving with a gun?

    The tradition of restricting permanent loss of rights to felons is a deep notch carved into a slippery slope. If we step out of it, we’ll never make a replacement half as deep.

      William Armstrong III in reply to ecreegan. | March 2, 2016 at 1:01 pm

      Actually this case is about what you have said also. This case if the Feds win will open the flood gates for misdemeanor simple assault. That’s what my Co was charged with before Lautenberg Act. was passed. They went retro and applied Lautenberg to him. He had a simple assault misdemeanor not a domestic violence charge. That’s why I can’t stand how News publications put forth the news, they don’t give real facts just opinions and if you read a article all the way thu you might get a few details at the end. Note my name.

NotEnoughSand | March 1, 2016 at 2:17 pm

It doesn’t seem like the Court is going to reach a constitutional issue but will decide this on statutory interpretation. My read on Kennedy is he’ll be siding against the government on this, in addition to the usual suspects. Even Ginsburg seemed skeptical of the government’s position, although perhaps not enough to vote with the conservative Justices.

A lot of this is going to come down to just how much Castleman already decided the statutory issue. Off to read I go…

    Gremlin1974 in reply to NotEnoughSand. | March 1, 2016 at 5:08 pm

    Ginsberg can be surprising in this area, but I think its because she looks at statutory decisions as kind of math problems. “Is that the way the operation is supposed to work?”

    William Armstrong III in reply to NotEnoughSand. | March 2, 2016 at 1:37 am

    You see this is the second time my case has been in front of the Supreme Court. The first time was when they had made the ruling on Castleman. They then picked my case up and reviewed it and vacated the 1st circuit decision and remanded it back to them. The 1st circuit was also ordered to stay in the guidelines that the Supreme had set. All other 10 sister circuits are inline with the Supreme Court. It was a attempt to pull them back inline. What the 1st C did next was to come up with their own new definition of “Recklesness” even opposing previous ruling of theirs. The 1st circuit even went as far to vacate a ruling in District Court in Portland Maine in light Castleman and Armstrong and found in favor of the defendant. After the ruling another case in Bangor Maine was also dismissed in light of Castleman and Armstrong. The Judge who dismissed that case” Judge Woodcock” was the same Judge who had sentenced me. So after all that and the 1st looked at my case again they still upheld their decision a second time. So now they have created a conflict between them and all other Courts. You should read the dissent from the 1st circuit, its good and very long. Scalia had already wrote a strong opinion in my favor. So I am hoping they will find in my favor to stop the conflict in the courts. 1 last thing, the 1st C attached Viosine to me and I don’t know how his name ended up first when the case went back to the Supreme Court. I had told Ms. Villa that I was not pleased especially when I had heard he had killed a eagle. I hope this helps you out with your research.

    Respectfully, Bill