No Guns for Reckless Domestic Violence Offenders, says court in Voisine.
I very rarely weigh in in on the issue of gun control. Mostly, this is because I am very much a Colorado Liberal on this issue, and though our views actually coincide with a large percentage of the nation, they are rarely included in conversations on the topic. (Basically, I believe that we should have the right to own the firearms we used to steal the land from the Native Americans, but I stop short somewhere before your right to own a Howitzer.)
That said, I am glad to see the decision in Voisine et al v. U.S. Despite what you may have read in other sources, this decision does not make it illegal for those convicted of domestic violence to own a firearm. Federal law already does that. Furthermore, a decision from 2003 made it clear that a domestic violence conviction need only meet the requirement for common-law battery (i.e. ‘offensive touching’).
Despite what you may have read in other sources, this decision does not make it illegal for those convicted of domestic violence to own a firearm. Federal law already does that.
The decision in Voisine is actually a fairly minor distinction. Mr. Voisine was convicted of domestic violence for beating up his girlfriend under a statute that required a minimum mens rea of recklessness. He was later convicted of possessing a firearm in violation of federal law. The question was whether it was unconstitutional to deprive him of his right to own a firearm despite the fact that it was not necessary to prove that he intentionally acted violently. The court, wisely in my opinion, stated that someone who is reckless (acting in disregard fore human life and safety) when committing an act of domestic violence is still a perpetrator of domestic violence for the purpose of federal gun prohibitions.
Mens rea was one of my favorite topics in law school. Perhaps that was because my criminal law professor, Ian Farrell, opened his mouth in nearly comic contortions to get his Australian accent around any Latin terms he used. Mens Rea means the “mental state” required to be convicted of crime. In many cases, it is the mens rea it makes the distinction between a serious felony and a misdemeanor.
For example, homicide is an umbrella term for the taking of another person’s life. Legally, a person can be convicted of first degree murder, second-degree murder, manslaughter, involuntary manslaughter, or many other flavors or variations of these terms. The largest distinction between these crimes will be the mens rea, or the required mental state.
The different mental states are labeled differently from jurisdiction to jurisdiction. But, for the most part, crimes that carry a higher penalty require a more intentional state of mind. For example, a fairly universally recognizable mens rea for first degree murder would be “intentionally took the life of another human being with malice aforethought,” even if the wording differs from jurisdiction to jurisdiction. Whereas a mens rea for involuntary manslaughter might read “took the life of another human being while acting with recklessness for human life.”
In Voisine, the court has affirmed that the prohibition against domestic abusers being able to own firearms should include those convicted under a mens rea of recklessness. What, exactly, does that mean? It means that the already existing prohibition against those convicted of domestic violence now includes someone who has been convicted of violence against another human they are in a relationship with, but that the judge or jury only had to find their behavior reckless, not necessarily intentional.
In Voisine, the court has affirmed that the prohibition against domestic abusers being able to own firearms should include those convicted under a mens rea of recklessness. What, exactly, does that mean?
I actually see two two legal problems here, and hence two sides to the argument. The first is that, if the court were to have decided the other way, many statutes would have to been rewritten, and many abusers with existing convictions would be allowed a loophole giving them access to firearms that they should not have. This is because many abusers who commit violent acts against partners or children intentionally would be convicted under a statute that only requires reckless conduct. Is may be because a jurisdiction only has only one statute, because of plea bargains, or because of expediency in prosecution. Or because many states, like Colorado, add Domestic Violence as a rider on during the sentencing phase, and thus it can be tied to many different types of misdemeanor and fellony offenses with different mens rea.
The other problem, and the other side of the legal argument, is that our second amendment rights were embedded in the constitution for reason. I have great sympathy for this argument. While I am in favor of certain types of gun policy reform, I am really hesitant to agree with the denial of basic Constitutional rights to anyone in America. That is, without due process.
However, Americans have been on notice since the late 1960’s that domestic violence could result in the loss of the right to own a firearm. As I said, don't let the headlines fool you. Although the current wording only dates back about 20 years, people convicted of domestic violence have been prohibited from owning firearms since 1968. This is not Obama’s doing, nor it this Supreme Court's. The only thing this court has done today has said if you committed an act act of domestic violence recklessly, you still cannot own a firearm. This only affirms the way courts have been acting on this issue for decades.
Our homes are our sanctuaries. Or at least they should be. Someone who brings violence into the home has lost some of his rights as a citizen. One of those is his right to privacy, as he will probably have to have he conversation about such convictions with every employer who ever runs a background check. But, chief among those rights he has forfeited is the right to own a gun. I would argue that domestic abusers deprived of their Second Amendment rights have had their due process.
Our homes are our sanctuaries. Or at least they should be. Someone who brings violence into the home has lost some of his rights as a citizen.
It may seem harsh to take away a basic civil right based on a misdemeanor that only requires recklessness, but let’s take a moment to think about what reckless domestic violence really is. It’s the wife who comes home drunk and starts throwing dishes, hitting her husband with a cast iron pan, putting him in the hospital for three weeks and causing permanent brain damage. (“I didn’t realize I’d grabbed a pan. I thought it would break like the dishes.”) Or the boyfriend who also came home drunk and beat his girlfriend and her three kids till he passed out, breaking her arm, giving one kid a black eye and the other a dislocated shoulder. These are both people that were convicted of misdemeanors under Colorado Law that did not require a mens rea higher than recklessness, but which carried the Colorado Domestic Violence riders. (I am familiar with these cases from observing in the Civil Protection Order court. I have no personal connection to either of these cases.)
Constitutional rights are given to us as a trust. I’ve yet to hear a judge quote Uncle Ben, but you can bet if I ever make the bench, I will constantly. “With great power comes great responsibility.” Our Second Amendment rights give us great power. But in the case of domestic violence, a citizen has shown that he (or sometime she) will use whatever power he has to completely invade, control, violate, and negate the rights of at least one other person, and often an entire family. That citizen has negated their great responsibility. Believe me, I have seen the damage that can be done without a firearm being in the picture. But nothing gives a domestic abuser more absolute power than a device designed to give murder a point-and-click interface. I, for one am fine with taking that right away from someone merely “reckless” with the lives of those purported to be their “loved ones”.
But in the case of domestic violence, a citizen has shown that he (or sometime she) will use whatever power he has to completely invade, control, violate, and negate the rights of at least one other person, and often an entire family.
Ultimately, this is a situation where one person’s civil rights have to be curtailed in order to protect the basic human rights of others. A domestic abuser has proven that he or she we’ll use whatever power he or she has due to deprive his or her victim of their fundamental right to feel safe in their own home. Taking away the right to own a gun from someone who has committed an act of violence, whether intentional or reckless, against someone that they purported to love is an insignificant injustice when weighed against the rights that they have deprived their victims. When you add in a recidivism rate of 30 to 40%, the chance that they will commit violence again is simply too high to ignore.
(About my experience.) The most important work that I have done thus far as an attorney was done before I graduated law school; before I even began preparation for the bar exam. For two semesters, I served as guardian ad litem in the civil protection order court in Denver. June has been a month for set up for my new firm, but it will launch on July 5, 2016. And a good part of my pro bono work will be to continue to volunteer in this role. As of the time of this publishing, my web site is under construction, but will launch with the firm on July 5th at http://mjchristensen.legal.
