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Why Justice Sotomayor sided with Justice Thomas on a gun-control dissent

The Supreme Court upheld a ban on gun ownership for those who have been convicted of a domestic violence misdemeanor. But the dissent had the unlikely support of a liberal justice. 

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    It was a busy week at the Supreme Court, pictured above on June 20. Justices issued rulings on abortion regulations, "official act" definitions, and on whether federal law should be able to restrict gun ownership from domestic violence misdemeanants.
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Gun control-related filibusters and sit-ins may be animating proceedings on the Congressional floor, but legislators are not the only ones who have been tackling gun control. The Supreme Court ruled Monday in favor of the authority of a federal law that restricts those who have been convicted of a domestic violence misdemeanor from owning a gun.

The case started as a relatively straightforward proceeding in the Supreme Court. The central question, argued in February, relates to the constitutionality of a 1996 federal law, known as the Lautenberg Amendment to the Gun Control Act. The amendment grouped domestic violence misdemeanants with felons, in terms of gun ownership. Federal law prohibits gun ownership from anyone who has been convicted of a crime punishable by a sentence of more than one year, a rule that includes all felonies.

The case, Voisine et al. v. United States, was not the first time that the Supreme Court had heard a challenge to the amendment. Related cases were decided in 2014 and 2009, notes Mother Jones

This year's iteration involved two men from Maine, Stephen Voisine and William Armstrong III, who each had had their guns confiscated several years after they received convictions for domestic assault misdemeanors. They were challenging the law on the grounds that Maine's definition for domestic violence misdemeanor, which includes "reckless assault," doesn't meet the threshold that would invoke the Lautenberg Amendment, reports Mother Jones.

In this case, as in the other two prior ones, the Supreme Court voted in favor of the constitutionality of the law, and domestic violence and gun control advocacy groups applauded the decision, citing the well-documented relationship between domestic violence and gun violence.

But what was unusual about the case, perhaps, was how the justices reacted.

First, during the arguments in February, the case became the first time Justice Clarence Thomas had asked a question in court in ten years. As Assistant Solicitor General Ilana H. Eisenstein was wrapping up her case, Justice Thomas asked: “Can you give me another area where a misdemeanor violation suspends a constitutional right?”

Then in Monday’s dissent, Thomas, who voted against the federal law, was joined by an unusual ally, liberal Justice Sonia Sotomayor. That meant in the 6-2 decision, one dissenting vote came from a conservative, Thomas, while the other was from a liberal, Justice Sotomayor, which could seem like a contradiction. In 2014, Sotomayor voted in favor of upholding the restrictions on misdemeanants in a case challenging the Lautenberg Amendment, writes The Washington Post. 

Then, she spoke in favor of a broader definition of domestic violence: “Minor uses of force may not constitute ‘violence’ in the generic sense,” Sotomayor wrote. But even a small act of forcible touching “is easy to describe as ‘domestic violence,’ when the accumulation of such acts over time can subject one intimate partner to the other’s control.”

In Monday's ruling, how actions are defined was also at the crux of the case. And it was on this point that Sotomayor, who did not agree with Thomas’ opinion that the Second Amendment is being treated “cavalierly," landed on the same decision he did.

Both justices agreed that because Maine's definition of a misdemeanor includes “reckless” behavior, which could include unintentional wrongdoing, it should not warrant removal of firearms.

Thomas likened this to a man who hurts his wife because he dropped a plate and his hands were soapy. This “soapy-handed husband” did not have the intention of hurting his wife.

In his written opinion, he said “because mere recklessness is sufficient to sustain a conviction” that conviction “does not necessarily involve the ‘use’ of physical force,” and so should not mean that a firearm right should be taken away.

This was the rhetoric that Sotomayor agreed with.

The two justices were in the minority, however. Justice Elena Kagan expressed the majority opinion to be just the opposite, writing: “a person who assaults another recklessly uses force no less than one who carries out that same action knowingly or intentionally.”

While the debate focused on the concept of intentionality, the case is part of a larger conversation surrounding a body of evidence linking gun violence to domestic violence. Roughly half of the women who are killed in the US with a gun are killed by an intimate partner, and in nearly 60 percent of mass shootings, classified as four or more deaths, one of the victims is a spouse or intimate partner, according to data from the research and advocacy group Every Town for Gun Safety.

“There’s nothing more important than removing firearms from people who are known to have abused a family member,” said Joan S. Meier, legal director of the Domestic Violence Legal Empowerment Appeals Project told The Washington Post, in reference to the case.

[Editor's note: An earlier version of the summary to this story incorrectly implied that Sotomayor supported the restrictions.]

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