I. Introduction

Nearly half of all female homicides are committed by the victim’s current or former male intimate partner.[164] The existence of a firearm in the midst of domestic violence increases the risk of homicide by 500%.[164] When a gun is involved in a domestic violence assault, the assault is twelve times more likely to end in death compared to assaults involving bodily force or other weapons.[164] One in four adult women have faced severe physical violence inflicted by an intimate partner.[164]

The crisis of domestic violence and its endangerment of women is not a new phenomenon. It spurred legislation in the mid-1990s because “all too often, the difference between a battered woman and a dead woman is the presence of a gun.”[164]

This Note begins in Part II by tracing the congressional purpose, intent, and passage of legislation closing loopholes in federal domestic violence laws to better protect survivors.[164] Part III outlines the Supreme Court’s 2016 holding on the issue in Voisine v. United States, which held that firearm bans are properly applied to domestic violence misdemeanants.[164] The Voisine majority’s reasoning rested on differing theories of statutory interpretation, from which two justices dissented.[164] Part III further discusses the caselaw leading up to that point, including precedents established on related issues leading up to Voisine. An additional subsection is devoted to Justice Thomas’s dissenting opinion, emphasizing his focus on the constitutional issues related to the Second Amendment and its guarantee to domestic violence misdemeanants.[164] Part IV traces modern Second Amendment jurisprudence as it is understood in the wake of District of Columbia v. Heller[164] and McDonald v. City of Chicago,[164] including how reasonable regulations on gun ownership are constitutional.[164] Part V briefly postulates how the composition of the Court may affect the durability of the Voisine decision moving forward and discusses the work of the newest justices to the high court—Justice Gorsuch and Justice Kavanaugh. This part also addresses existing criticisms of the decision and its practical reality.[164]

II. The Lautenberg Amendment

The 1996 Domestic Violence Offender Gun Ban is referred to as the Lautenberg Amendment[164] because the bill’s sponsor was Democratic New Jersey Senator Frank Lautenberg.[164] The legislation amended the Gun Control Act of 1968 to prohibit persons convicted of a crime involving domestic violence from owning or possessing firearms.[164] Senator Lautenberg’s floor statements clarified his purpose in preventing domestic abusers from escalating their violence by barring access to potentially lethal weapons.[164] The proposed legislation met opposition across the aisle, requiring compromise for its eventual passage in the Senate.[164] Such concessions included replacing the trigger for the firearms ban from mere indictments for domestic violence to actual convictions.[164] However, passage was more difficult in the House of Representatives where Senator Lautenberg faced more emboldened opposition from “enemies of the ban—lawmakers who oppose any curbs on guns.”[164]

The lower chamber incorporated a “use of force” requirement, which narrowed the law’s reach by applying only to physical force, a more restrictive application than conventional federal gun laws.[164] This change required the predicate domestic violence offense to include “the use or attempted use of physical force, or the threatened use of a deadly weapon” to trigger a firearm ban.[164]

The bill’s origin was rooted in increased protection for women, a proposition supported by its legislative history. The Lautenberg Amendment was fittingly offered at first as an added protection within the federal Anti-Stalking Act.[164] However, partisan opposition architected an attempt to foil the bill, and in response, Lautenberg attached the amendment to Treasury, Postal Service, and General Government appropriations instead, possibly creating a poison pill.[164] In the end, the legislation finally found success via the 1997 Omnibus Consolidated Appropriations Act.[164] Inclusion in such comprehensive legislation meant the Amendment snuck in as a rider amongst a range of other disjointed federal projects getting their general appropriations.[164] After it was passed, President Clinton signed it into law on September 30, 1996,[164] and Lautenberg’s amendment was primarily codified into the United States Code at 18 U.S.C. § 922(g)(9).[164] But as is common with legislation that is the product of compromise,[164] the statute was riddled with textual ambiguity, underscoring the issue presented in Voisine v. United States.[164]

III. Voisine v. United States

Voisine came to the Court by way of a circuit split over whether a reckless domestic violence misdemeanor was a sufficient hook for a firearm disarmament law.[164] At the time, new law was clear that “misdemeanor crime[s] of domestic violence” generally triggered the firearm prohibition.[164] However, state statutes varied in their definition of what kinds of acts constituted misdemeanor crimes, leading to disparate results across geography.

The facts in Voisine involved the Maine Criminal Code, which counted “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person” as a misdemeanor.[164] The petitioner, Stephen Voisine, pleaded guilty to an offense in 2004 for assaulting his girlfriend.[164] The question was whether “misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger[ed] the statutory firearms ban.”[164] This inquiry underscores the fundamental distinction between Justice Kagan’s majority opinion and Justice Thomas’s dissent in Voisine. The contrast hinges on the perceived volition behind the act of domestic violence itself. Justice Thomas worried about the prospect of curbing Second Amendment rights due to accidental use of force without any intention.[164] This concern is better understood with a rudimentary contextualization of mens rea in this case.

A. Mens Rea Under the Model Penal Code

Some of the policy implications embedded in Voisine center on the justification of holding a mere reckless act sufficient to trigger a firearms ban.[164] The lynchpin in criminal law between conduct, actus reus, and moral culpability lies in the mens rea or “guilty mind”[164] of the perpetrator, wherein volition creates criminality.[164] The Supreme Court in Morissette v. United States commented on the persistence of a mens rea requirement as instinctual, tracing back to Blackstone—actions required a “vicious will” to be criminal.[164]

However, the modern application of mens rea focuses more on the state of mind of the actor rather than any moral deficiency or vicious will.[164] This emphasis on state of mind is reflected in the Model Penal Code’s (MPC) four culpability factors: purpose, knowledge, recklessness, and negligence.[164] Under the MPC, a person recklessly commits assault when “he consciously disregards a substantial and unjustifiable risk”[164] of causing harm to another.[164] Justice Thomas’s fears about unintentional conduct are possibly assuaged by the MPC’s modern elaboration of the reckless definition: “[t]he risk must be of such a nature and degree that . . . its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”[164] This framing of a reckless act works to obviate the worry of punishing mere accidents. However, when compared to the MPC’s treatment of acts executed “purposely” or “knowingly,” the question is more complicated. These two heightened culpability standards demand more intent by the actor, requiring that his “conscious object” be the harm created itself.[164] These increasingly culpable states of mind better fit the characterization of a prototypical domestic abuser whose aim is to inflict harm while engaged in abusive conduct.

The MPC further distinguishes crimes along three axes—“conduct,” “circumstances,” and “result[s].”[164] Given the Lautenberg Amendment’s purpose to curb domestic violence fatalities, the issue may be better framed in terms of the result of the act—harming a domestic partner—rather than the intention of the actor. Yet, the majority opinion in Voisine focused on the conduct itself, the “use of force,” to evaluate whether (1) disregard of the risk of force or (2) intent to use force was what was required to justify the conduct element that triggered the firearm ban.[164] In an attempt to settle that question, the Supreme Court had to reconcile with its own precedent from two years prior that took up what constituted a “use” of force.

B. Voisine’s Precedent: The Castleman Question

The Supreme Court heard Voisine to resolve “whether a reckless assault . . . qualifie[d] as a ‘use’ of force—so that a misdemeanor conviction . . . would trigger § 922(g)(9)'s firearms ban.”[164] The Court’s precedent in United States v. Castleman underscores the importance of the posture of Voisine. In Castleman, the petitioner argued the firearms ban should not apply to him because his Tennessee conviction did not rise to the level of a “misdemeanor crime of domestic violence” under federal law because the Tennessee statute did not have the “use . . . of physical force” element that the federal law had.[164] The defendant pled guilty to “‘intentionally or knowingly caus[ing] bodily injury to’ the mother of his child” for offensive touching—not a violent act sufficient to trigger the ban in his view.[164]

The Castleman Court imported a broad reading of “use of . . . force” in the domestic violence context in deciding what kind of conduct was considered “the use or attempted use of physical force.”[164] Justice Sotomayor wrote for the majority, which held that “use . . . of physical force” bore its common law meaning.[164] The holding was rooted in statutory interpretation reasoning that Congress’s failure to include a specific definition equated to a legislative intent for the phrase “use . . . of . . . force” to assume its common law meaning of “misdemeanor crime of domestic violence.”[164] Thus, consistent with the Lautenberg Amendment’s purpose, offensive touching constituted use of “force.”[164] This broadened the scope of predatory behaviors domestic violence survivors were protected from.[164] Using the Castleman precedent as a roadmap, the canons of statutory construction became the primary analytic tool employed in Voisine two years later.[164]

C. The Voisine Majority & Expansion of “Use of Force”

1. Foreshadowing in United States v. Hayes.

Predicate offenses featured prominently in the Voisine decision, specifically offenses that constituted “misdemeanor crime of domestic violence.”[164] Such a predicate is statutorily defined as:

a misdemeanor under Federal, State, or Tribal law; and . . . has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.[164]

The latter element—the relational requirement—was taken up previously by the Court.[164]

The Court’s penchant for relying on statutory construction to expand protection for domestic abuse survivors did not begin with Castleman. The Court similarly utilized statutory construction to broadly interpret the relational requirement in United States v. Hayes.[164] The Government argued in Hayes that a relationship between an abuser and his victim was not a required element of the predicate offense for the firearm ban, but only that a relationship must have existed when the offense transpired.[164] Justice Ginsburg agreed with this argument, writing for the majority that “[p]ractical considerations strongly support our reading of [the statute]'s language.”[164] This illustrated the Court’s fidelity to congressional intent when disarming convicted domestic abusers was at issue. This statutory argument and judicial reasoning supported the gun ban’s purpose of protecting victims from domestic abusers,[164] thereby closing “a dangerous loophole” in gun control laws.[164] The Court’s commitment to upholding legislative intent and showing deference to Congress, despite competing methods of statutory interpretation, continued in Voisine as well.[164]

2. Deconstructing “Use” in Voisine.

Justice Kagan, writing for the majority, relied on both statutory text and legislative background to hold that even a reckless domestic assault qualified as a misdemeanor crime of domestic violence to establish a “use . . . of . . . force.”[164] The Court prioritized a functionalist approach to avoid “undermin[ing] the provision’s design,” because two-thirds of state laws extend misdemeanor crimes of domestic violence to reckless acts, and the legislative intent was to prohibit abusers convicted of “run-of-the-mill . . . assault and battery laws from possessing guns.”[164]

This assessment of “use” came down to a textual analysis of the word’s definition, but contextualized with its imported reasonable understanding as to “the user’s” cognizance of their acts of violence in the moment.[164] It would be an absurd result to read reckless acts out of the statute and undo the will of thirty-five different jurisdictions regarding their assault laws and domestic violence.[164] To mitigate the dissent’s ultimate worry about possible over-inclusivity in the statute’s punishing accidents,[164] the majority employed illustrative examples, providing more clarity to distinguish between reckless conduct and accidents.[164] Ultimately, a domestic abuser’s “conscious disregard of a substantial risk of harm” is sufficiently reckless to constitute a “use” of physical force.[164]

The majority’s conclusion is a victory for survivors by casting reckless behavior in its natural light in the domestic violence context. A perpetrator’s disregard for the risk of harm to their domestic partner may justify legal consequence, and societal condemnation is a stronger deterrent from such patterned behavior.[164] The Voisine majority’s conclusion legitimizes the severity of domestic violence and acknowledges the plight of the abused by holding misdemeanants accountable under the law, as felons have long been.[164]

3. A Dissent Makes for Strange Bedfellows.

Parts I and II of the dissenting opinion in Voisine were authored by Justice Thomas and, perhaps surprisingly, joined by Justice Sotomayor.[164] This coalition may seem strange, considering it was Justice Sotomayor who wrote for the majority in Castleman, which broadened the definition of domestic violence.[164] Justice Sotomayor found in Castleman that requiring “violent contact with the victim” to find “use of physical force” was too literal and superficial a conclusion, explaining the deficiency of the petitioner’s definition of “use of physical force” in that case.[164] Yet, she joined the Voisine dissent. Once more, the lens of statutory interpretation may help in understanding how these two ideological poles wound up standing in agreement. Justice Sotomayor only joined the portions of Justice Thomas’s dissent that hinged on an understanding of whether one can recklessly “use” something at all.[164] She notably did not join the parts of the dissent which opine on the constitutional contours of the Second Amendment.[164]

Through his partial concurrence in Castleman, Justice Scalia, employing his trademark allegiance to textualism,[164] disagreed with Justice Sotomayor’s expansion of “domestic violence.”[164] Voisine was argued in the immediate wake of Justice Scalia’s death, and the conservative mantle was left in the hands of Justice Thomas.[164] The Second Amendment issue was a point for him alone to make, though perhaps with the memory of his former colleague in mind.

The Court was in rare form with only eight justices sitting for the case,[164] so the significance of Justices Sotomayor and Thomas joining in dissent is all the more relevant, considering how the composition of the Court has changed.[164] The impact of the Supreme Court’s composition is especially relevant to the durability of the Voisine majority opinion. In fact, the Court which ushered in modern Second Amendment jurisprudence no longer exists.[164] Understanding the genesis of modern Second Amendment interpretation is important to fully analyze the case at hand.

IV. Modern Second Amendment Caselaw & Limitations[164]

A. District of Columbia v. Heller

In the summer of 2008, Justice Scalia delivered the majority opinion in District of Columbia v. Heller.[164] This marked the first decision to interpret the Second Amendment to the United States Constitution in almost 70 years.[164] This span of judicial silence on the Second Amendment mirrors the social lethargy over gun rights that took hold of American society until around the 1970s.[164] Prior to Heller, the Court relied on its 1939 interpretation of the right to bear arms which contextualized the Second Amendment with the Constitution’s Militia Clause.[164] The Court ruled there was no guarantee to keep a sawed-off shotgun without a connection to regulating a militia.[164] However, the scope of an individual right to bear arms outside of literal militia regulation expanded with the Heller decision. But this expansion was cabined off with a noteworthy mention of acceptably reasonable regulations on gun ownership, which is of special relevance to the disarmament of domestic violence misdemeanants.[164]

In Heller, the majority’s ruling settled on the individual-rights model of gun ownership.[164] The Court found the Second Amendment protected an individual’s right to possess and bear arms for any lawful purpose, such as self-defense of the home, regardless of a connection to service in a militia.[164] This contrasted the countervailing conception of gun ownership as a collective right, shared by an entity or body of peoples in a group for military service.[164] But gun ownership as a fundamentally individual right complicates the viability of any attempted regulation of such a right, as contemplated in Voisine.[164] However, Justice Scalia’s opinion noted that the decision should not be read to make unlawful any regulation of firearm ownership, alluding to “longstanding prohibitions on the possession of firearms by felons and the mentally ill.”[164] In enumerating long-held prohibitions on gun ownership, the majority went out of its way to clarify that the list of acceptable gun regulations was illustrative, and not exhaustive.[164] Thus, the proposition in Voisine of the constitutionality of regulating gun ownership for domestic violence misdemeanants is not precluded on its face.

B. McDonald v. City of Chicago

In McDonald v. City of Chicago, the Court extended Heller, holding that the right to keep and bear arms for self-defense extends to states and municipalities.[164] Justice Alito wrote for the majority, explaining how the individual-rights conception of gun ownership applies to state law through the Due Process Clause.[164] In so doing, the conservative majority doubled down on the concept of using handguns for self-defense as “deeply rooted in this Nation’s history and tradition.”[164] Self-defense as a fundamental right was the talisman of this steeped tradition for the Court.[164] This fundamentalism noted, Justice Alito borrowed from the Heller majority to emphasize that this interpretation of an individual Second Amendment right to bear arms merely limits, by placing parameters on the state’s ability to experiment with solutions to gun violence, but does not eliminate their ability to do so wholesale.[164]

To Justice Alito’s point, the expansive nature of the right to bear arms is cabined off by the Court’s acceptance of reasonable regulation on gun ownership. This line-drawing aids in understanding the Voisine majority and solidifying its stance in American law. A domestic violence assault in Maine is triggered when a mental state of “intentionally, knowingly, or recklessly” is paired with a use of force.[164] Given that thirty-five states extend their assault laws to even reckless conduct, Congress understood the recklessness hook in the domestic violence context not to be a clever flourish of statutory rhetoric, but as a reasonable regulation on gun possession.[164] In the context of the McDonald decision, Justice Alito stated plainly, “Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”[164] It can be seen from the modern Second Amendment caselaw that the Court takes care to defend existing regulations that curb the right to own guns in some contexts, referring in both McDonald and Heller to restrictions for felons and the mentally ill.[164]

The federal government is not the only authority to acknowledge reasonable gun regulations. States also follow the tradition of upholding appropriate limitations on the Second Amendment. Many do so by often relying on a “reasonable regulations” test.[164] Federalism affords states discretion over their police powers in promoting each of the following: “public health, safety, morality, [and the] general welfare.”[164] With this in mind, which regulations are reasonable? Is it reasonable to prohibit gun possession and ownership for a domestic violence misdemeanant? The answer may vary by jurisdiction; states generally come to a consensus as to what constitutes reasonable regulation by balancing the limitation on the offender and the importance and fundamentalism of the right.[164] Many states incorporate the view that a mens rea of recklessness suffices for criminal liability and updated their misdemeanor assault and battery statutes[164] to parallel this stance, which was previously established in the MPC.[164] Congress knew the development in the legal understanding of recklessness when drafting § 922(g)(9) and intended to apply this meaning to the Lautenberg Amendment, given the intent to capture “run-of-the-mill” assault and battery misdemeanants.[164] The majority of states felt strongly enough to make a reckless domestic violence misdemeanor offense the legally reasonable limitation to trigger the firearms disarmament provision. This limitation was within the states’ purview, just as Justice Scalia and Justice Alito, in their respective opinions in Heller and McDonald, determined disarming felons and the mentally ill was reasonable.[164]

In his Voisine dissent, Justice Thomas reiterated the point. To the extent the limitation applies to groups traditionally accepted as justifiably disarmable, Justice Thomas echoed assurances from Heller and McDonald. However, he disagreed with the Voisine majority that it is justifiable to disarm a domestic violence misdemeanant under a state law recklessness standard:

[L]aws that prohibit dangerous persons, including felons and the mentally ill, from having arms . . . are not narrow restrictions on the right because they prohibit certain individuals from exercising their Second Amendment rights at all times and in all places. To be constitutional, therefore, a law that broadly frustrates an individual’s right to keep and bear arms must target individuals who are beyond the scope of the ‘People’ protected by the Second Amendment.[164]

But what makes felons or mentally ill persons—and not domestic violence misdemeanants—acceptable to carve out of the scope of the “We the People” that renders disarmament palatable? The Gun Control Act makes a criminal offense of a felon in possession of a firearm.[164] However, circuit courts do not agree on the public policy behind this prohibition.[164] Even within the Third Circuit, justification for a prohibition on felons possessing firearms ranged from the belief that persons committing severe crimes fall outside a “virtuous citizenry” and thus not within Heller’s scope, all the way to a belief in the propensity of felons to commit violence.[164] Meanwhile, the Fourth Circuit relied on the public policy justification that felony convictions take a person outside a class of law-abiding citizenship for Second Amendment protection.[164] The Seventh Circuit concluded that because of the specific reasoning in Heller that firearm bans for felons and the mentally ill are presumptively constitutional, any reasonable firearm regulation can be upheld with merely a strong showing by the government.[164]

In the Voisine context, domestic gun violence rises to the level of a substantial government interest for some courts, making the disarmament in that case reasonable and, therefore, constitutional.[164] Congress enacted § 922(g)(9) to close the loophole left by the reality that many domestic violence perpetrators are charged with misdemeanors in place of felonies, despite the level of violence or harm reflected in their conduct.[164] When paired with the extent of the problem Congress sought to address—domestic gun violence and its consequences—the reasonableness of Maine’s recklessness standard is apparent.

However, Justice Thomas disagreed and devoted a section of his dissent (which Justice Sotomayor did not join) to a Second Amendment constitutional question not raised by the petitioner at all.[164] It is unsurprising that his opinion included this issue when one realizes this specific question caused the Justice to break a decades-long silence from the bench.[164] Justice Thomas markedly asked the Government, “Can you give me another area where a misdemeanor violation suspends a constitutional right?”[164] In the section of his dissent addressing the question that was not raised by petitioner, Thomas went so far as to refer to the majority’s treatment of the Second Amendment issue in Voisine as “cavalier[].”[164] Yet, he nevertheless acknowledged the incidents he worried would be improperly swept under the majority’s overbroad construction—a case where a person only recklessly uses force, resulting in harm—are rarely even prosecuted.[164] That hypothetical is not the evil the firearm ban legitimately seeks to quash. In fact, the hypothetical case where reckless force causes reckless harm is never addressed by the majority. But Justice Kagan does indirectly assuage the concern when she distinguished reckless acts that require volition from merely accidental ones, given the common understanding of the verb “use.”[164]

Part III of Thomas’s dissent is noteworthy not only for its content, but also for its timing in the wake of Justice Scalia’s passing.[164] Justice Scalia authored the watershed Heller opinion and built a jurisprudential legacy as a strict textualist[164] but passed away mere months before the Voisine oral arguments.[164] Perhaps Justice Thomas assumed the plain text approach to the constitutionality of gun regulations, but Thomas’s defense of, and concern with, the Second Amendment is not a novel phenomenon. In addition to his feeling about the Court’s “cavalier[ness],”[164] he previously penned a dissent—joined only by Justice Scalia—to the denial of certiorari regarding assault weapons bans the year before Voisine in Friedman v. City of Highland Park.[164] In dissent, Thomas condemned the Seventh Circuit for using a balancing test to uphold a ban on semiautomatic firearms, or “assault weapons,” and recognizing a substantial government benefit in such a regulation.[164] In a more telling flourish, he accused the Seventh Circuit of “flout[ing]” Second Amendment precedent and suggested the Supreme Court’s refusal to review the decision was antithetical to constitutional practice.[164] Ultimately, Justice Thomas went so far as to imply the Seventh Circuit treats the Second Amendment as a “second-class right.”[164]

These protestations that the Second Amendment is not equally upheld to the perceived status that it deserves among other rights in the Bill of Rights is apparent in Justice Thomas’s Voisine dissent too. He analogized the firearm regulation to a hypothetical lifelong ban from publishing for libelous misdemeanants under the First Amendment.[164] This worry persisted in 2018 when Justice Thomas accused his fellow justices of relegating the Second Amendment to a “disfavored right” in his second dissent from denial for writ of certiorari for a challenge to a California law that requires a ten-day waiting period for firearm sales.[164]

Though Voisine was not a close case, its holding may be subject to reinterpretation given the enduring worry over the Second Amendment issue. The new composition of the Court may call the holding into question should Justice Thomas find supporters of his demonstrated commitment to expanding the right to bear arms. Justice Sotomayor is not an ally on the Second Amendment issue. She only joined Justice Thomas’s statutory interpretation arguments—her stance on domestic violence is much clearer.[164] However, the calculus does not end with consideration of her stance, given that the Court has experienced an ideological shift with the two new additions to its ranks.

V. The Voisine Issue in the Future

A. New Justices with Different Views

The addition of the Supreme Court’s two newest justices likely solidifies a new conservative block on issues of gun rights and, perhaps, domestic violence. Justice Gorsuch has already displayed a willingness to reevaluate the scope of Heller’s individual right to bear arms by joining another of Justice Thomas’s certiorari denial dissents.[164] The case, Peruta v. California, took up the issue of a California ban on carrying a loaded handgun in public.[164] In joining this dissent, Justice Gorsuch echoed Justice Thomas in his worry over the Court’s “distressing trend” to treat “the Second Amendment as a disfavored right.”[164]

However, in the Tenth Circuit case of United States v. Pope, then-Circuit Judge Gorsuch ruled that a domestic violence misdemeanant convicted under § 922(g)(9) could not legally retain a firearm in his home.[164] But this does not per se mark a bellwether for telegraphing Justice Gorsuch’s vote on a case like Voisine. It is unclear whether one can reasonably believe Justice Gorsuch may supplant Justice Kennedy in the majority on such an issue. Justice Gorsuch’s reasoning in Pope rested on a procedural failing of an indictment and not the constitutional quandary whether the scope of the Second Amendment reaches domestic violence misdemeanants.[164] With a thin record on Second Amendment issues, but support from gun-rights organizations like the National Rifle Association (NRA), the question of placing firearms in the hands of domestic abusers may be open to an affirmative answer with Justice Gorsuch.[164]

Justice Gorsuch is not the only new addition to the Supreme Court with commendation from the NRA.[164] Justice Kavanaugh is seen by the group as a strong supporter of the Second Amendment.[164] He authored a dissent when Heller was before the D.C. Circuit, saying he would strike down a Washington, D.C. ban on semiautomatic rifles and its registration requirement for all firearms.[164] In that opinion, Kavanaugh expounded upon his belief that the scope of the Second Amendment is bound by “text, history, and tradition” and not any balancing of government interests like public safety against individual liberty.[164] It appears from this decision that he feels the fundamental nature of the Second Amendment as articulated in McDonald[164] overrides public policy concerns of safety, perhaps even domestic violence.[164] Yet Kavanaugh’s dissent echoed Justice Scalia in Heller with regard to longstanding regulations already in existence, explaining that Heller largely preserved the status quo of existing gun regulations in America.[164] Justice Kavanaugh’s test for which gun regulations pass constitutional muster hinges on notions of tradition in the American ethos. Therefore, it is unclear whether a law enacted in the 1990s as recognition of a growing crisis with domestic violence and homicide would pass the test.[164]

B. Criticism for Voisine

Though there is growing acknowledgment of domestic violence as an American epidemic, some criticism of the Court’s expansion of what constitutes domestic violence and requisite willingness to disarm perpetrators indefinitely acknowledges a downside to the approach. Disarming a domestic violence offender may create a chilling effect on reporting abuse or increase recidivism among abusers or cause joblessness for those whose work demands access to firearms, which can render domestic plight more fraught and dangerous.[164] A knee-jerk reaction to domestic violence, which is instinctively anti-gun, may miss the point of intimate partner abuse, which can be more nuanced than a want or need for your partner to be permanently disarmed.[164]

In addition to criticizing the reasoning in cases like Voisine for relying on misunderstood beliefs about domestic violence, critics point out that gun prohibitions like § 922(g)(9) are facially well-intentioned, but poorly enforced. Thus, Voisine’s impact is largely superficial.[164] Prosecutorial discretion leads to many incidents where violators are infrequently prosecuted or not sentenced appropriately.[164] Beyond any agenda for a U.S. attorney’s office, many domestic violence crimes may go unprosecuted because these crimes do not adequately fit into an existing prosecuting unit or structure.[164] There remains additional criticism that the law as it stands relies on stereotypical conceptions of women as helpless to a paternal menace at home and in need of patriarchal intervention by the State.[164]

Further, some who generally support the Court’s approach in balancing gun ownership and domestic violence are skeptical of the decision’s utility in light of the practical concern of firearm relinquishment and recidivism.[164] In forty states, there is no requirement for domestic abusers to relinquish their guns at all, and the majority offer no protocol for ensuring firearms surrender.[164] Further, if state law permits domestic violence misdemeanants to relinquish their firearm to confidants or colleagues, it may prove just as dangerous to the victim as the perpetrator remaining armed.[164]

Lastly, as Justice Thomas made clear in his questioning during the Voisine oral arguments, there is no other example in American law where a misdemeanor offense triggers a permanent curtailment of a fundamental, constitutional right.[164] The future will bear out whether or not that is because of a societal value placed on addressing the crisis of violence in the family and the danger of arming domestic abusers, or if the Second Amendment will prevail as a guarantee in which restrictions are limited to only longstanding and originalist intentions.

VI. Conclusion

The data are clear that domestic violence perpetrators are exponentially more dangerous to their families when they are armed. And, due to the precarious and sensitive nature of domestic violence, incidents often go unreported. Further, the complexity of family and intimate relationships means ambivalence or cognitive dissonance leaves many domestic abuse perpetrators undercharged as misdemeanants or not charged at all. Congress noted this emergency and passed the Lautenberg Amendment to keep guns out of the hands of abusers. In allegiance to that cause, many states adapted their domestic violence laws to incorporate every mens rea into “use of force.” This move was an intentional means of keeping firearms out of the hands of anyone convicted of a violent crime against a family member.

The Supreme Court acknowledged both congressional intent and the will of the states in Voisine when it agreed that a misdemeanor with a required element of recklessness was sufficient for the disarmament of a domestic violence perpetrator. At the time, the decision seemed technical and garnered an easy 6-2 majority. Though Justice Sotomayor joined Justice Thomas in what may be a surprising coalition, a closer look shows that this coalition stood on statutory interpretation, not substantive beliefs on domestic violence or gun regulation. But, in the wake of Justice Scalia’s death, Justice Thomas used his Voisine dissent to mark himself a formidable and renewed advocate for the Second Amendment. With the addition of new conservatives to the Supreme Court, each having records of seeking to broaden the scope of the Second Amendment individual right to bear arms, Justice Thomas may find more allies agreeing that no legitimate interest exists in disarming domestic violence misdemeanants.

Should this alliance come to pass, the impact on domestic violence survivors could be significant, and possibly lethal. For now, Voisine is authoritative law, but time will tell whether the high Court continues to make domestic violence survivor protection a priority.

Cassie Maneen


  1. Emiko Petrosky et al., Racial and Ethnic Differences in Homicides of Adult Women and the Role of Intimate Partner Violence—United States, 2003–2014, 66 Morbidity & Mortality Wkly. Rep. 741, 741 (2017), https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6628a1.pdf [https://perma.cc/QU36-675V].

  2. Jacquelyn C. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 Am. J. Pub. Health 1089, 1090 (2003).

  3. Domestic Violence & Firearms, Giffords L. Ctr. to Prevent Gun Violence, https://lawcenter.giffords.org/gun-laws/policy-areas/who-can-have-a-gun/domestic-violence-firearms/#federal [https://perma.cc/W3L4-MZCZ] (last visited Feb. 19, 2020) (citing Linda E. Saltzman et al., Weapon Involvement and Injury Outcomes in Family and Intimate Assaults, 267 JAMA 3043, 3044 (1992)).

  4. Michele C. Black et al., Ctrs. for Disease Control & Prevention, The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report 2 (2011).

  5. 142 Cong. Rec. S11,226–27 (daily ed. Sept. 25, 1996) (statement of Sen. Lautenberg) (quoting 142 Cong. Rec. S10,378 (daily ed. Sept. 12, 1996) (statement of Sen. Wellstone)).

  6. See infra Part II.

  7. See Voisine v. United States, 136 S. Ct. 2272, 2282 (2016); infra Part III.

  8. Voisine, 136 S. Ct. at 2278–82.

  9. See infra Part III.

  10. District of Columbia v. Heller, 554 U.S. 570 (2008).

  11. McDonald v. City of Chicago, 561 U.S. 742 (2010).

  12. See infra Part IV.

  13. See infra Part V.

  14. See Tom Lininger, An Ethical Duty to Charge Batterers Appropriately, 22 Duke J. Gender L. & Pol’y 173, 182 (2015).

  15. 142 Cong. Rec. S2646–47 (daily ed. Mar. 21, 1996) (statement of Sen. Lautenberg).

  16. Id. at 2647; Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 658, 110 Stat. 3009–371 (1996) (codified as amended at 18 U.S.C. 922(g)(9) (2018)).

  17. 142 Cong. Rec. S11,363 (daily ed. Sept. 26, 1996) (statement of Sen. Lautenberg) (“[W]e proposed that no wife beater, no child abuser, whether retrospectively, retroactively, or in the future, ought to be able to have a gun, because we learned one thing—that the difference between a murdered wife and a battered wife is often the presence of a gun. In the couple of million cases every year that are reported about domestic abuse, in 150,000 cases that we are aware of, a gun was present, a gun was held to the temple of a battered wife or perhaps a child.”).

  18. See 142 Cong. Rec. S9459 (daily ed. Aug. 2, 1996) (statement of Sen. Lautenberg) (explaining that Sen. Kay Bailey Hutchison of Texas threatened to block President Clinton’s nomination of Judge Ann D. Montgomery to the federal bench if Sen. Lautenberg did not concede his amendment).

  19. 142 Cong. Rec. S8832 (daily ed. July 25, 1996) (statement of Sen. Lautenberg) (“I made a change from the introduced version to respond to a suggestion from some of my colleagues. Like my original bill, which covered persons indicted for domestic violence offenses, this amendment applies only to those who have actually been convicted of domestic violence.”).

  20. Guy Gugliotta, Gun Ban Exemption Ricochets in the Struggle, Wash. Post, June 10, 1997, at A15.

  21. Compare 18 U.S.C. § 921(a)(33)(A)(ii) (defining the “misdemeanor crime of domestic violence” as requiring “the use or attempted use of physical force, or the threatened use of a deadly weapon”), with 18 U.S.C. § 924(c)(3)(A) (utilizing a broader definition of “use of force” to include “the use, attempted use, or threatened use of physical force”).

  22. 18 U.S.C. § 921(a)(33)(A)(ii).

  23. The Anti-Stalking Act was sponsored by Republican Texas Senator Kay Bailey Hutchison who refused to incorporate the Lautenberg amendment, believing it to be a poison pill in the stalking bill’s passage. See Eric Andrew Pullen, Comment, Guns, Domestic Violence, Interstate Commerce, and the Lautenberg Amendment: “[S]imply Because Congress May Conclude that a Particular Activity Substantially Affects Interstate Commerce Does Not Necessarily Make It So.,” 39 S. Tex. L. Rev. 1029, 1036 (1998).

  24. 142 Cong. Rec. S11,877 (daily ed. Sept. 30, 1996) (statement of Sen. Lautenberg); Pullen, supra note 23, at 1037.

  25. Melanie C. Schneider, The Imprecise Draftsmanship of the Lautenberg Amendment and the Resulting Problems for the Judiciary, 17 Colum. J. Gender & L. 505, 511 (2008).

  26. Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996). This omnibus bill also included support for such wide-ranging provisions as the California Bay-Delta Environmental Enhancement and Water Security Act and amendments such as those made to the Museum Services Act, including renaming it as the Museum and Library Services Act. Id. at 3009–293 to –295, 3009–748 to –749.

  27. See Lininger, supra note 14, at 180.

  28. 18 U.S.C. § 922(g)(9) (2018) (“It shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”).

  29. See John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 445 (2005) (making the argument that legislation can “look awkward” as a result of congressional compromise).

  30. See Voisine v. United States, 136 S. Ct. 2272, 2278 (2016) (outlining the issue of the case as presenting a question due to ambiguity within the text).

  31. Id. at 2277–78 (first citing United States v. Voisine, 778 F.3d 176 (1st Cir. 2015), aff’d, 136 S. Ct. 2272, 2278 (2016); and then citing United States v. Nobriga, 474 F.3d 561 (9th Cir. 2006) (per curiam)).

  32. 18 U.S.C. § 922(g)(9).

  33. Voisine, 136 S. Ct. at 2277; Me. Rev. Stat. Ann. tit. 17-A, § 207(1)(A) (2019).

  34. Voisine, 136 S. Ct. at 2277.

  35. Id. at 2276.

  36. See id. at 2290 (Thomas, J., dissenting) (“The majority’s attempt to distinguish ‘recklessness’ from an ‘accident,’ is an equivocation on the meaning of ‘accident.’ An accident can mean that someone was blameless—for example, a driver who accidentally strikes a deer that darts into a roadway. But an accident can also refer to the fact that the result was unintended: A car accident is no less an ‘accident’ just because a driver acted negligently or recklessly.” (citation omitted)).

  37. Compare id. at 2282 (Kagan, J.) (“The federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the ‘use . . . of physical force’ against a domestic relation. That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.” (citation omitted)), with id. at 2285 (Thomas, J., dissenting) (“But I part ways with the majority’s conclusion that purely reckless conduct—meaning, where a person recklessly creates force—constitutes a ‘use of physical force.’ In my view, it does not, and therefore, the ‘use of physical force’ is narrower than most state assault statutes, which punish anyone who recklessly causes physical injury.”).

  38. Mens Rea, Black’s Law Dictionary (11th ed. 2019). But see Voisine, 136 S. Ct. at 2282 (“And that indeterminacy confirms our conclusion that Congress had no thought of incorporating the common law’s treatment of mens rea into § 921(a)(33)(A).”).

  39. See generally Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635 (tracing the genesis of the mental element required for criminal liability under the English Common Law through the modern American jurisprudential doctrines governing mens rea and the different levels of culpability, including under the Model Penal Code).

  40. Morissette v. United States, 342 U.S. 246, 250–51 (1952) (citing 4 William Blackstone, Commentaries *21).

  41. Gardner, supra note 39, at 681.

  42. Model Penal Code §§ 2.02(1)–(2) (Am. Law Inst. 1985).

  43. Id. § 202(2)(c).

  44. The Maine statute analyzed in Voisine followed the MPC approach. Voisine v. United States, 136 S. Ct. 2272, 2278 (2016).

  45. Model Penal Code § 2.02(2)(c).

  46. Id. (“A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist,” and “[a] person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.” (emphasis added)).

  47. Id. § 1.13(9).

  48. Voisine, 136 S. Ct. at 2278–80.

  49. Id. at 2277.

  50. United States v. Castleman, 134 S. Ct. 1405, 1409 (2014) (quoting 18 U.S.C. § 921(a)(33)(A) (2012)).

  51. Id. at 1409–10 (quoting Tenn. Code Ann. § 39-13-111(b) (Supp. 2002)).

  52. Emily J. Sack, United States v. Castleman: The Meaning of Domestic Violence, 20 Roger Williams U. L. Rev. 128, 137–38 (2015) (quoting Castleman, 134 S. Ct. at 1409–10).

  53. Castleman, 134 S. Ct. at 1410 (quoting 18 U.S.C. § 924(e)(2)(B)(i)) (Justice Sotomayor was joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Kagan).

  54. Id. (quoting 18 U.S.C. §§ 921(a)(33)(A), 924(e)(2)(B)(i)).

  55. Id. (citing Johnson v. United States, 559 U.S. 133, 139–40 (2010)).

  56. But see Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (finding that the “use of physical force” statutorily required under 18 U.S.C. § 16 to establish a “crime of violence” suggested a category of violent, active crimes, of which lower courts generally hold offensive touching cannot constitute). However, the Castleman Court distinguished Leocal by claiming that “interpretations of ‘crime of violence’ d[o] not apply to ‘misdemeanor crimes of domestic violence,’” as the latter encapsulates “a range of force broader than that which constitutes ‘violence’ simpliciter.” See Sack, supra note 52, at 142 n.76 (first and second emphases added) (citing Castleman, 134 S. Ct. at 1411 n.4).

  57. Voisine v. United States, 136 S. Ct. 2272, 2278–79, 2283–84 (2016) (both the majority and dissenting opinion rely heavily on dictionary definitions, common verbiage, and parsing of the text to support their findings).

  58. Id. at 2279–82 (quoting 18 U.S.C. § 921(a)(33)(A)).

  59. 18 U.S.C. § 921(a)(33)(A).

  60. United States v. Hayes, 555 U.S. 415, 421 (2009).

  61. See Lininger, supra note 14, at 184–85 (citing Hayes, 555 U.S. at 426).

  62. Brief for the United States at 7–8, United States v. Hayes, 555 U.S. 415 (2009) (No. 07-608).

  63. Hayes, 555 U.S. at 426–29 (surveying the legislative history, statutory purpose, and practical considerations associated with the Lautenberg Amendment).

  64. See, e.g., Bill Mears, Court: No Guns for People Guilty of Domestic Violence, CNN (Feb. 24, 2009, 6:43 PM), http://edition.cnn.com/2009/CRIME/02/24/suspreme.court.gun.rights/ [https://perma.cc/3S2K-8SDB] (quoting the head of the Brady Campaign to Prevent Handgun Violence as saying the decision in Hayes, if the Court ruled in the Government’s favor, would “protect domestic violence victims”); National Network to End Domestic Violence Praises Landmark Supreme Court Decision, Nat’l Ctr. on Domestic & Sexual Violence (Feb. 24, 2009), http://www.ncdsv.org/images/NNEDVPraisesLandmarkSupremeCTDec_2-25-09.pdf [https://perma.cc/3NWS-BKCH] (quoting the organization’s president, Sue Else, as remarking that the “decision [was] a major victory for victims of domestic violence and their families.”).

  65. Voisine v. United States, 136 S. Ct. 2272, 2276 (2016) (quoting United States v. Castleman, 134 S. Ct. 1405, 1409 (2014)).

  66. See Sack, supra note 52, at 140 n.74 (“The Court similarly rejected Castleman’s rule of lenity argument, finding that the rule applies only when a statue [sic] is ambiguous after considering text, structure, history, and purpose. The Court stated simply ‘that [this] is not the case here.’” (citation omitted) (quoting Castleman, 134 S. Ct. at 1416)).

  67. Voisine, 136 S. Ct. at 2278.

  68. Id.; see also Sack, supra note 52, at 129 (“Though the case concerned what might appear to be a somewhat technical question of statutory interpretation—the meaning of ‘the use of physical force’ in the provision defining a ‘misdemeanor crime of domestic violence’—more profoundly, it involved a struggle over the meaning and dynamics of domestic violence. Castleman’s significance lies in the nuanced understanding of domestic violence expressed by the majority, which could have an impact well beyond its reading of the firearms prohibition at issue in the case.”).

  69. Voisine, 136 S. Ct. at 2278–79 (“Dictionaries consistently define the noun ‘use’ to mean the ‘act of employing’ something. On that common understanding, the force involved in a qualifying assault must be volitional . . . . But the word ‘use’ does not demand that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so.” (citations omitted)).

  70. Id. at 2280 (“Assuming that provision defines a single crime (which happens to list alternative mental states)—and accepting petitioners’ view that § 921(a)(33)(A) requires at least a knowing mens rea—then, under Descamps v. United States no conviction obtained under Maine’s statute could qualify as a ‘misdemeanor crime of domestic violence.’” (citation omitted)).

  71. Id. at 2287 (Thomas, J., dissenting) (“Finally, and most problematic for the majority’s approach, a person could recklessly unleash force that recklessly causes injury. . . . [T]his category is where the majority and I part company. . . . [T]he term [use of physical force] does not include nonviolent, reckless acts that cause physical injury or an offensive touching. Accordingly, the majority’s definition is overbroad.”).

  72. Id. at 2279 (“If a person with soapy hands loses his grip on a plate, which then shatters and cuts his wife, the person has not ‘use[d]’ physical force in common parlance. But now suppose a person throws a plate in anger against the wall near where his wife is standing. That hurl counts as a ‘use’ of force even if the husband did not know for certain (or have as an object), but only recognized a substantial risk, that a shard from the plate would ricochet and injure his wife.”). Justice Kagan’s distinction is apt in doing the work of clarifying how a state statute like Maine’s may broaden the culpability of acts of domestic violence to better serve victims yet still adheres to common law understanding of reckless versus accidental behavior as found in areas like tort law. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 39–42 (W. Page Keeton ed., 5th ed. 1984) (explaining the foundational concept in tort law where, if an act that merely intends to threaten assault winds up making contact regardless of a goal to do so, it becomes a battery elementally).

  73. Voisine, 136 S. Ct. at 2282.

  74. See Rhonda Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 Colum. Hum. Rts. L. Rev. 291, 305 (1994) (“Indeed, domestic violence against women is systemic and structural . . . . [T]here is an astounding convergence in regard to the basic tenets of patriarchy and the legitimacy, if not necessity, of violence as a mechanism of enforcing that system. Violence is encouraged by and perpetuates women’s dependence and her dehumanization as ‘other,’ a servant and a form of property.” (footnote omitted)).

  75. Voisine, 136 S. Ct. at 2280 (accounting how a reasonable understanding of the congressional intent behind the firearms ban is not novel in restricting gun rights for certain segments of the population deemed to have justifiably lost them, the Court stated that “Congress enacted [the statute] in 1996 to bar those domestic abusers convicted of garden-variety assault or battery misdemeanors—just like those convicted of felonies—from owning guns”); see also District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008) (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”).

  76. Voisine, 136 S. Ct. at 2282.

  77. See supra Section II.B.

  78. United States v. Castleman, 134 S. Ct. 1405, 1409, 1411–12 (2014) (“Minor uses of force may not constitute ‘violence’ in the generic sense. . . . [A squeeze of the arm] 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.”).

  79. Voisine, 136 S. Ct. at 2282–90 (quoting 18 U.S.C. § 922(g)(9) (2012)). But cf. Castleman, 134 S. Ct. at 1412 (“If a seemingly minor act . . . draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a ‘misdemeanor crime of domestic violence.’”).

  80. Voisine, 136 S. Ct. at 2282, 2290–92.

  81. See generally, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 343–410 (2012) (containing thirteen sections concerned with “[e]xpos[ing]” “[f]alsities” related to the critique of textualism); David M. Zlotnick, Justice Scalia and His Critics: An Exploration of Scalia’s Fidelity to His Constitutional Methodology, 48 Emory L.J. 1377, 1388 (1999) (“Consistent with his underlying motivation, Scalia sees textualism both as a constitutionally mandated end in itself and as a means to restrict the judiciary to its proper role . . . .”); Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. Rev. 25, 30 (1994) (quoting Dan Izenberg, Clinging to the Constitution, Jerusalem Post, Feb. 19, 1990) (“Judges should be restricted to the text in front of them . . . . According to my judicial philosophy, I feel bound not by what I think . . . but by what the text and tradition actually say.” (quoting Justice Scalia)).

  82. Castleman, 134 S. Ct. at 1420–21 (Scalia, J., concurring) (“But when they (and the Court) impose their all-embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence.”).

  83. See Josh Gerstein, Supreme Court Justice Antonin Scalia Dead at 79, Politico (Feb. 13, 2016, 5:14 PM), https://www.politico.com/story/2016/02/breaking-news-supreme-court-justice-antonin-scalia-dead-at-the-age-of-79-219246 [https://perma.cc/9XGJ-5QM5]; Voisine, 136 S. Ct. at 2272 (argued Feb. 29, 2016, and decided June 27, 2016).

  84. Voisine, 136 S. Ct. at 2276.

  85. See Noah Feldman, When Opposites Converge over Domestic Violence, Bloomberg (June 28, 2016, 8:00 AM), https://www.bloomberg.com/opinion/articles/2016-06-28/when-opposites-converge-over-domestic-violence [https://perma.cc/8EDU-5QD8] (“It’s not often that the Supreme Court’s most liberal and most conservative members are the only two justices dissenting from an opinion joined by the rest.”).

  86. See Luis Acosta, United States: Gun Ownership and the Supreme Court, Libr. Congress, https://www.loc.gov/law/help/usconlaw/second-amendment.php [https://perma.cc/C46D-PEEB] (last updated Aug. 16, 2019) (outlining the modern development of gun rights-focused judicial opinions in 2008, when District of Columbia v. Heller, 554 U.S. 570 (2008), was authored by Justice Scalia, and in 2010, when Justice Alito’s opinion in McDonald v. City of Chicago, 561 U.S. 742 (2010), extended those rights to states and municipalities); see also Justices 1789 to Present, Sup. Ct. U.S., https://www.supremecourt.gov/about/members_text.aspx [https://perma.cc/32VM-2JMV] (last visited Mar. 19, 2020) (listing all of the chief and associate justices of the Supreme Court and showing that the composition has changed from 2008 to present).

  87. An exhaustive analysis of Second Amendment caselaw in the modern Supreme Court is outside the scope of this Section and this Note. This Note’s focus remains on the reasonableness of restrictions that modern gun rights cases have explicitly condoned as permissible. For a broader assessment on Second Amendment law as it stands after Heller, see generally Sarah Herman Peck, Cong. Research Serv., R44618, Post-Heller Second Amendment Jurisprudence (2018) (outlining the legal framework for evaluating Second Amendment challenges in the wake of Heller and McDonald, including rulings on the constitutionality of firearms regulations).

  88. Heller, 554 U.S. 570.

  89. See United States v. Miller, 307 U.S. 174 (1939); Heller, 554 U.S. at 635 (“[T]his case represents this Court’s first in-depth examination of the Second Amendment.”).

  90. See German Lopez, How the NRA Resurrected the Second Amendment, Vox (May 4, 2018, 12:02 PM), https://www.vox.com/policy-and-politics/2017/10/12/16418524/nra-second-amendment-guns-violence [https://perma.cc/75VE-LGCK] (“And it all comes down [sic] a big shift in views on a provision of the Bill of Rights that was once called the ‘lost amendment’ because it got so little attention from scholars and the courts. The NRA managed to revive this amendment from its forgotten status to make it one of the most important pieces of law in modern political times.”); Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3, 3–5 (2000) (detailing the Supreme Court’s prior dealings with the Second Amendment from 1876–1939 and the longstanding acceptance of the “collective right” model) (“For nearly a century, the collective right model remained not only widely accepted but uncontroversial.”).

  91. See U.S. Const. art. I, § 8, cl. 16; Miller, 307 U.S. at 178 (“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”).

  92. Miller, 307 U.S. at 175, 178, 18283.

  93. Heller, 554 U.S. at 626–27.

  94. Id. at 581, 622 (accounting that the posture of the case starts from a presumption that the Second Amendment applies to each individual and later verifying the Second Amendment confers an individual right based on a logical reading of precedent on the issue); see also Patrick J. Charles, The Second Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing “Standard Model” Moving Forward, 39 Fordham Urb. L.J. 1727, 1728–29 (2012).

  95. See Heller, 554 U.S. at 635–36.

  96. See id. at 577 (“Petitioners and today’s dissenting Justices believe that [the Second Amendment] protects only the right to possess and carry a firearm in connection with militia service.”).

  97. See Voisine v. United States, 126 S. Ct. 2272, 2291 (2016) (Thomas, J., dissenting); Erwin Chemerinsky, Putting the Gun Control Debate in Social Perspective, 73 Fordham L. Rev. 477, 484 (2004) (“The assumption in the debate seems to be that an individual rights approach would mean strict scrutiny would be used when courts appraise the constitutionality of gun control measures. But there is no reason why this must necessarily be so. There are claims of individual rights under textual provisions of the Constitution which receive only rational basis review. Claims of economic liberties, such as freedom of contract under the Due Process Clause, have received only rational basis review.”).

  98. Heller, 554 U.S. at 626.

  99. Id. at 627 n.26 (“We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”).

  100. McDonald v. City of Chicago, 561 U.S. 742, 749–50 (2010).

  101. Id. at 767–69.

  102. See id. at 767 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)) (explaining the judicial calculus of whether a right is embedded in the concept of due process by virtue of it being fundamental to the American scheme of traditional values).

  103. See id. (“Self-defense is a basic right, recognized by many legal systems from ancient times to the present day . . . .”). There is perhaps tension in this conception of self-defense in terms of the right of the gun owner when contrasted with the power imbalance for self-defense of victims of domestic violence.

  104. Id. at 784–86 (agreeing with amici for petitioners that state and local attempts at reasonable firearm regulation will persist under the Second Amendment).

  105. Me. Stat. tit. 17-A, § 207(1)(A) (2019) (emphasis added).

  106. See Voisine v. United States, 136 S. Ct. 2272, 2280 (2016) (“What is more, petitioners’ reading risks rendering § 922(g)(9) broadly inoperative in the 35 jurisdictions with assault laws extending to recklessness—that is, inapplicable even to persons who commit that crime knowingly or intentionally.”). For a discussion of the canon against absurdities in statutory interpretation, see Valerie C. Brannon, Cong. Research Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 57 (2018) (explaining that courts will presume a legislature’s textual choices reflect their intention, and if a certain interpretation would create an absurd result, courts must rely on congressional intent to interpret a particular legislative term or provision).

  107. McDonald, 561 U.S. at 786.

  108. See id.; District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

  109. See Bruce D. Black & Kara L. Kapp, State Constitutional Law as a Basis for Federal Constitutional Interpretation: The Lessons of the Second Amendment, 46 N.M. L. Rev. 240, 249–50, 252–55 (2016) (outlining the reasonable regulation test employed by many state courts in the wake of Heller and McDonald in relation to applying scrutiny or balancing to gun regulations, a question the authors posit was left unresolved in Heller).

  110. See Linda R. Monk, Constitution USA: State Powers, PBS http://www.pbs.org/tpt/constitution-usa-peter-sagal/federalism/state-powers/ [https://perma.cc/H7WW-WG4N] (last visited Apr. 14, 2020); Black & Kapp, supra note 109, at 253.

  111. See Black & Kapp, supra note 109, at 253–54.

  112. See Brief for United States app. B, Voisine v. United States, 136 S. Ct. 2272 (2016) (No. 14-10154) (collecting statutes).

  113. Model Penal Code §§ 2.02(3) cmt. 5, 211.1 (Am. Law Inst. 1985).

  114. See, e.g., United States v. Bailey, 34 U.S. 238, 256 (1835) (“Congress must be presumed to have legislated under this known state of the laws . . . .”); see also supra Part III.

  115. District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). Of note, in both cases Justice Thomas joined the 5-4 majority opinions. Heller, 554 U.S. at 572; McDonald, 561 U.S. at 748–49.

  116. Voisine, 136 S. Ct. at 2291 (Thomas, J., dissenting).

  117. A felon is a person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1) (2018). States have similar provisions. See, e.g., Me. Stat. tit. 15, § 393(1)(A-1) (2018).

  118. See Peck, supra note 87, at 18–20.

  119. Id. at 19 n.178 (comparing Binderup v. Attorney Gen. U.S., 836 F.3d 336, 348–50 (3d Cir. 2016) (en banc) with id. at 367–75 (Hardiman, J., concurring)).

  120. Hamilton v. Pallozzi, 848 F.3d 614, 626 (4th Cir. 2017) (explaining that felons are removed from the class of law-abiding citizens unless they receive a pardon or the underlying felony statute is deemed unconstitutional).

  121. See United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010).

  122. See, e.g., United States v. Staten, 666 F.3d 154, 160–64, 166–68 (4th Cir. 2011).

  123. See United States v. Hayes, 555 U.S. 415, 426 (2009) (explaining how Congress understood felon-in-possession laws at the time did not reach the conduct of family domestic violence perpetrators because the unique nature of serious spousal or child abuse often results in the charging of misdemeanors in place of felonies).

  124. See Transcript of Oral Argument at 42, Voisine v. United States, 136 S. Ct. 2272 (2016) (No. 14-10154) (“We aren’t facing the constitutional question. We are simply facing the question of what Congress intended.” (statement of Justice Breyer from the bench)); Rory Little, Federal “Use of Force” Encompasses Reckless Domestic Violence Misdemeanor Offenses, SCOTUSblog (June 27, 2016, 9:08 PM), http://www.scotusblog.com/2016/06/opinion-analysis-federal-use-of-force-encompasses-reckless-domestic-violence-misdemeanor-offenses/ [https://perma.cc/L83R-H2NX] (“[T]he Court’s grant of certiorari in [Voisine] expressly denied review of a question asking whether the firearms-possession ban here violated the Second Amendment.”).

  125. See Garrett Epps, Clarence Thomas Breaks His Silence, Atlantic (Feb. 29, 2016), https://www.theatlantic.com/politics/archive/2016/02/clarence-thomas-supreme-court/471582/ [https://perma.cc/37AU-FTS6]; Rory Little, An Unremarkable Gun Case May Be Harbinger of Things to Come, SCOTUSblog (Mar. 1, 2016, 12:39 PM), http://www.scotusblog.com/2016/03/argument-analysis-an-unremarkable-gun-case-may-be-harbinger-of-things-to-come/ [https://perma.cc/49BU-72XF]; Mark Joseph Stern, Welcome to the Show, Clarence Thomas, Slate (Feb. 29, 2016, 6:22 PM), https://slate.com/news-and-politics/2016/02/why-voisine-v-united-states-a-case-about-domestic-violence-and-gun-rights-inspired-clarence-thomas-to-break-his-10-year-silence.html [https://perma.cc/T78P-CBQF].

  126. Transcript of Oral Argument, supra note 124, at 36.

  127. Voisine, 136 S. Ct. at 2291 (Thomas, J., dissenting).

  128. Id. at 2287, 2291 (referencing the hypothetical “Text-Messaging Dad” who recklessly sends a text while driving and injures his son).

  129. Id. at 2278–79 (Kagan, J.).

  130. See Gerstein, supra note 83; Voisine, 136 S. Ct. at 2292 (Thomas, J., dissenting) (using Scalia’s signature textualist approach in interpreting “use of force”).

  131. See Scalia & Garner, supra note 81, at 233, 400; Zlotnick, supra note 81, at 1382; Gerhardt, supra note 81, at 30–31.

  132. Gerstein, supra note 83; Transcript of Oral Argument, supra note 124, at 1.

  133. Voisine, 136 S. Ct. at 2291 (Thomas, J., dissenting).

  134. Friedman v. City of Highland Park, 136 S. Ct. 447 (2015) (Thomas, J., dissenting from denial of certiorari).

  135. Friedman v. City of Highland Park, 784 F.3d 406, 412 (7th Cir.), cert. denied, 136 S. Ct. 447.

  136. Friedman, 136 S. Ct. at 449.

  137. Id. at 450.

  138. Voisine, 136 S. Ct. at 2292 (Thomas, J., dissenting) (“I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel. In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to ‘relegat[e] the Second Amendment to a second-class right.’” (quoting Friedman, 136 S. Ct. at 450)).

  139. Silvester v. Becerra, 138 S. Ct. 945, 945 (2018) (Thomas, J., dissenting from denial of certiorari); see also Robert Barnes, Thomas Dissents from Supreme Court Decision Not to Review California Gun Law, Wash. Post (Feb. 20, 2018), https://www.washingtonpost.com/politics/courts_law/thomas-dissents-from-supreme-court-decision-not-to-review-california-gun-law/2018/02/20/342c378e-164d-11e8-92c9-376b4fe57ff7_story.html?utm_term=.6d36aca05af1 [https://perma.cc/93BQ-BYCE].

  140. Voisine, 136 S. Ct. at 2282; see also supra Section III.C.

  141. Peruta v. California, 137 S. Ct. 1995, 1996 (2017) (Thomas, J., dissenting from denial of certiorari).

  142. Id.; see also Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir. 2016), cert. denied, 137 S. Ct. 1995, 1996 (2017).

  143. See Peruta, 137 S. Ct. at 1999.

  144. United States v. Pope, 613 F.3d 1255, 1256–57 (10th Cir. 2010).

  145. Id. at 1257 (“The district court denied Mr. Pope’s motion to dismiss and today we affirm that decision. We do so without passing, one way or the other, on Mr. Pope’s Second Amendment defense because an antecedent procedural problem lurks here.”).

  146. See NRA Applauds Neil Gorsuch’s Nomination to the U.S. Supreme Court, Nat’l Rifle Ass’n-Inst. for Legis. Action (Jan. 31, 2017), https://www.nraila.org/articles/20170131/nra-applauds-neil-gorsuchs-nomination-to-the-us-supreme-court [https://perma.cc/DUP2-5SDE]; Michele Gorman, Neil Gorsuch Hearing: Why the NRA Is Betting Big on Trump Supreme Court Nominee, Newsweek (Mar. 20, 2017, 2:10 PM), https://www.newsweek.com/neil-gorsuch-hearing-nra-betting-trump-supreme-court-nominee-571092 [https://perma.cc/AHY6-46SL] (explaining Justice Gorsuch’s decision in a previous case (Pope), which he disposed of on procedural grounds instead of taking a stance that domestic violence perpetrators fall outside Second Amendment protection of law-abiding citizens).

  147. See Sahil Kapur & Greg Stohr, A Kavanaugh Supreme Court May Expand Gun Rights, Senators Say, Bloomberg (July 12, 2018, 3:00 AM), https://www.bloomberg.com/news/articles/2018-07-12/a-kavanaugh-supreme-court-may-expand-gun-rights-senators-say (“The National Rifle Association’s top lobbyist Chris Cox praised Kavanaugh as an ‘outstanding choice’ with ‘an impressive record that demonstrates his strong support for the Second Amendment.’”).

  148. Id.

  149. Heller v. District of Columbia, 670 F.3d 1244, 1269, 1296 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

  150. Id. at 1271.

  151. McDonald v. Chicago, 561 U.S. 742, 767 (2010).

  152. See Heller, 670 F.3d at 1296 (Kavanaugh, J., dissenting) (“D.C. believes that its law will help it fight violent crime. Few government responsibilities are more significant. That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime. . . . In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have ‘controversial public safety implications.’” (citations omitted) (quoting McDonald, 561 U.S. at 783)).

  153. Id. at 1270 (citing District of Columbia v. Heller, 554 U.S. 570, 629 (2008)).

  154. See 142 Cong. Rec. S9458 (daily ed. Aug. 2, 1996) (statement of Sen. Lautenberg).

  155. See Carolyn B. Ramsey, Firearms in the Family, 78 Ohio St. L.J. 1257, 1259–60, 1260 n.6, 1289, 1298 (2017) (explaining the possible negative consequences from laws upholding the permanent disarmament of domestic violence misdemeanants).

  156. See id. at 1260, 1295–97 (“First, such an approach tends to ignore the reality of intimate-partner abuse—a reality in which some women fight back; some family livelihoods depend on jobs for which guns are required; not all misdemeanants become murderers; and victims have valid reasons for wanting to keep their partners out of prison.”).

  157. See id. at 1263–64.

  158. See Tom Lininger, An Ethical Duty to Charge Batterers Appropriately, 22 Duke J. Gender L. & Pol’y 173, 175–76, 188, 194 (2015) (citing Syracuse Univ., Transaction Records Access Clearinghouse, span class=“smallcaps”>Federal Weapons Enforcement: A Moving Target (2013), http://trac.syr.edu/tracreports/crim/307/ [https://perma.cc/J58D-PR8G]) (explaining that out of the likely hundreds of thousands of eligible defendants to prosecute under the gun ban, only about thirty to seventy are prosecuted annually).

  159. Emily J. Sack, Confronting the Issue of Gun Seizure in Domestic Violence Cases, 6 J. Ctr. for Families Child. & Cts. 3, 8 (2005).

  160. See generally Jennifer Carlson & Kristin A. Goss, The Second Generation of Second Amendment Law & Policy: Gendering the Second Amendment, 80 Law & Contemp. Probs. 103, 116, 118, 127 (2017) (outlining the general framework of Second Amendment governance through a gendered lens and interrogating how both gun-rights and gun-control advocates rely on different gendered phenomena in propagating their arguments).

  161. See generally Laura Lee Gildengorin, Note, Smoke and Mirrors: How Current Firearm Relinquishment Laws Fail to Protect Domestic Violence Victims, 67 Hastings L.J. 807, 819–20 (2016).

  162. Id. at 838 (citing Everytown for Gun Safety, Guns and Violence Against Women: America’s Uniquely Lethal Domestic Violence Problem 6 (2014), http://everytown.org/documents/2014/10/guns-and-violence-against-women.pdf/ [https://perma.cc/SEA8-PTL5]).

  163. See id. at 839.

  164. Transcript of Oral Argument, supra note 124, at 36–37.