WASHINGTON — Supreme Court Justice Clarence Thomas broke his decade-long silence Monday and asked several questions during an oral argument about whether people should lose their right to carry a gun because of a domestic violence conviction.
Thomas took the side of a Maine man, Stephen L. Voisine, 55, of Wytopitlock, who lost his right to own a gun after he pleaded guilty to a domestic violence charge and paid a $200 fine.
Speaking near the end of an hourlong argument, Thomas pressed a government lawyer to cite another example of where the law permanently “suspends” a citizen’s constitutional right based on a misdemeanor conviction.
He was referring to the Second Amendment right to have a gun. No one would lose their First Amendment to right to speak or publish a book because of a misdemeanor conviction, he said.
“Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?” Thomas asked, suggesting that the government might have a better case if the underlying crime had involved the use of a gun.
Federal law forbids felons from possessing a gun, and in 1996, Congress went further and outlawed gun possession for anyone who “has been convicted in any court of a misdemeanor crime of domestic violence.”
The high court unanimously upheld that provision three years ago as long as the defendant had used “physical force.”
The justices on Monday heard consolidated appeals from two Maine men, Voisine and William E. Armstrong III, 51, of New Vineyard, who both pleaded guilty to domestic violence assault, a misdemeanor crime, for having “knowingly or recklessly” caused or engaged in “offensive physical contact” with a domestic partner or family member. Armstrong was convicted in 2008 in Franklin County and Voisine was convicted in 2004 in Aroostook County, according to court documents filed in federal court in Maine.
Armstrong was arrested in April 2011 and charged with illegally possessing six guns and ammunition. Voisine was arrested five years later for having shot a protected bald eagle. When federal investigators discovered his earlier conviction for domestic violence, they charged him with unlawful possession of a firearm.
If Voisine and Armstrong are successful, their federal convictions would be reversed and they would be allowed to possess guns again unless they have had subsequent convictions in state court that would ban them from having firearms, according to a previously published report. Both men have completed their sentences for the gun and domestic violence convictions.
Armstrong was released in July 2015 after serving seven months after his probation was revoked because he was charged in state court with drunken driving in July 2014. He originally was sentenced to three months of probation and ordered in February 2012 to pay a $2,500 fine.
Voisine, 55, was released from federal prison in February 2013 after being sentenced to serve a year and a day in February 2012.
Both men entered conditional pleas to the charges that allowed them to pursue their appeals to the 1st U.S. Circuit Court of Appeal in Boston. Their convictions were upheld in January 2015.
The U.S. Supreme Court agreed last year to combine the cases and hear the men’s appeals to decide whether “reckless” conduct was enough to trigger the ban on gun possession, according to a previously published report.
Thomas’ courtroom silence is rare. Though in earlier decades it was common for justices to sit silently for weeks at a time, today the other eight justices typically ask at least one question during every argument.
Thomas has given several explanations for his silence. He told law school audiences that his colleagues asked too many questions and did not permit lawyers to make their arguments. Before joining the court in 1991, Thomas served one year on the U.S. court of appeals, where he was one of three judges asking questions during arguments.
Thomas also said that from his days at Yale Law School, he preferred to listen rather than ask questions in class.
Before Monday, the last time Thomas asked a question during oral arguments was in February 2006.
On occasion in court, he leans over to speak privately to Justice Stephen Breyer. At times, Breyer has said that Thomas had raised an interesting point and tried, without success, to encourage Thomas to raise it with the lawyer.
Some speculated that the recent death of Justice Antonin Scalia may have prodded Thomas to break his silence. A fellow conservative, Thomas joined Scalia in 5-4 rulings that had upheld individual gun rights under the Second Amendment.
Without Scalia, Thomas may believe the court lacks a strong voice in favor of the Second Amendment.
Distributed by Tribune Content Agency, LLC.
BDN writer Judy Harrison contributed to this report.