Voisine v. United States: Reckless Domestic Violence (06/27/16)


Voisine v. United States

Should a reckless domestic assault qualify as a “misdemeanor crime of domestic violence,” taking away their Second Amendment rights as if they have committed a felony?

See 18 U.S.C. § 922(g)(9) for more.  

Decision Date: June 27, 2016

Decision Record: 6-2; yes

Justices in Favor: Elena Kagan (LC*), Samuel Alito (R), Ruth Bader Ginsburg (L), Anthony Kennedy (LC), John Roberts (RC), and Stephen Breyer (L)

Justices Dissenting: Clarence Thomas (R) and Sonia Sotomayor (L)

Effect of the Decision

This case has the effect of possibly unjustly eroding a person’s Second Amendment constitutional right to firearm ownership.

In Favor

The argument in favor, in this case, made by attorney Ilana Eisenstein, claims, “The argument is that this Court should effectuate Congress’s purpose by giving Section 922(g)(9) the meaning that Congress intended, which is to cover generally applicable assault and battery statutes regardless of whether, on a rare instance, they may wrongly end up covering an individual who was perhaps recklessly driving and injured a family member.”


In the opposition, Mr. Voisine, who was represented by attorney Virginia Villa, stated, “The same state of mind should attach to each (bodily injury or offensive touching), and that is why intentionality is the state of mind that under the common law must attach to each. Because intentional battery covered both the offensive physical contact as well as the physical injury, whereas recklessness covers only bodily injury.”


Justice Clarence Thomas, finally breaking his 10-year silence, with regard to reckless domestic assault brought up an argument in favor of Mr. Voisine. He said in his dissent, “The ‘reckless’ standard could result in people forever being denied their constitutional right to firearm for ‘a single conviction for an infraction punishable only by a fine.’”

Then in the opinion paper, he wrote, “The majority decides that a person who acts recklessly has used physical force against another. But that fails to appreciate the distinction between intentional and reckless conduct. A ‘use’ of physical force requires the intent to cause harm.” Justice Thomas, along with Justice Sonia Sotomayor, were the only two justices that sided with Mr. Voisine.

On the other hand, the majority side of the decision, the side of the United States, wrote on the opinion slip, “Several decades earlier, the Model Penal Code had taken the position that a “mens rea” of recklessness should generally suffice to establish criminal liability, including for assault … So in linking §922(g)(9) to those laws, Congress must have known it was sweeping in some persons who had engaged in reckless conduct (without intent).”

Then it proceeded to say, “That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.” The majority of the decision included, Justices Kagan, Alito, Ginsburg, Kennedy, Roberts, and Breyer.

My Opinion:

First of all, it’s required that the Supreme Court Justices follow the constitution in making their decisions, however, the majority decision in this case would likely be found unconstitutional if challenged on those grounds. Second of all, § 922(g)(9) states that misdemeanor domestic violent acts are treated as a felony, and felons are already stripped of their constitutional right to own a gun, therefore instead of adding ambiguity to misdemeanor offenses, specific domestic violence cases should be made by felonies to retain clarity. Additionally, whereas misdemeanors are minor offenses that are not granted a jury trial, thus because domestic violence is only a misdemeanor, the person’s Second Amendment rights could be taken away without a jury trial, for something as unintentionally injuring his child in an accident while texting and driving. This should not be allowed as without intent it is not reckless domestic assault.  Thus in order to prevent people from unjustly losing their constitutional rights, the appropriate misdemeanor offenses should be re-classified as felonies.

The law requires the “use of physical force,” and a “use of physical force” requires the intent to cause harm. I agree with what Justice Thomas wrote in his opinion slip: “The majority overlooks the critical distinction between conduct that is intended to cause harm and conduct that is not intended to cause harm.”

For conduct to rise to the level of domestic violence against a family member, it requires intent. The majority’s interpretation of the law is too broad. The intention of the law was to be applied to domestic violence with intent. Consider that recklessly driving and harming a family member unintentionally, would have no relationship to the probability of committing an act of domestic violence or of using a firearm in an improper manner, because there was no intent to harm.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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