The officer-involved shootings in Baton Rouge and Minnesota last week – combined with the premeditated, cold-blooded murders of five Dallas Police officers, with a firearm – remind us once again of the complicated legal and political issues created by gun violence. In Dallas, it is notable that the killer did not target vulnerable people in a gun-free zone; he targeted law enforcement officers in public that he knew were armed, and trained to kill with their own guns. In Baton Rouge and Minnesota – where we are still learning additional facts, making it premature to draw definite conclusions about the legality of the official conduct there – the legal issues are potentially even more complex because they concern the intersection of gun rights and Fourth Amendment law. I have posted previously (here and here) on the Fourth Amendment issues being created by the liberalization of gun laws around the country. One persistent problem involves the ways in which a broad reading of gun rights, combined with an accordingly narrow reading of search of seizure powers, could place law enforcement officers in the untenable position of knowing that a person is armed but lacking the power to temporarily detain and disarm them, absent some additional reasonable suspicion beyond the fact that the person is armed.
With that in mind, I want to shift to an interesting but slightly different gun rights problem, one that Justice Thomas raised at the end of the Supreme Court’s term. In his dissent in Whole Woman’s Health v. Hellerstedt, the Texas abortion law challenge, Thomas writes that, “[t]he Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others.” He continued, “[u]nless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”
I am not sure to what he is referring when he speaks of “many” enumerated rights being disfavored, but I am confident he is referring to one in particular: the Second Amendment right to keep and bear arms. I have such confidence because on the same day, in Voisine v. United States, Justice Thomas offered an even more comprehensive criticism of what he views as the disfavored nature of Second Amendment rights. In Voisine, Thomas – speaking only for himself, as Justice Sotomayor joined only the first two parts of his dissent, but not Part III – explains that the federal law at issue has the effect of imposing a broad disability on gun ownership, a decision that is left to the discretion of federal and state prosecutors. “We treat no other constitutional right so cavalierly,” he said, explaining that a majority of the Court would likely not approve of a law that imposed a lifetime ban on publishing by a person convicted of misdemeanor libel. He also repeated a line that he used previously in dissenting from the denial of certiorari in a Second Amendment challenge, saying that “the Court continues to ‘relegate the Second Amendment to a second-class right.'” (quoting his dissent in Friedman v. Highland Park).
What was especially notable about his Voisine dissent, though, was his observation about the limits on gun rights. He acknowledged the limitations described in District of Columbia v. Heller, and appeared to concede that gun rights are not absolute. But then he noted the broad disabilities approved in Heller – presumptively valid prohibitions on possession by dangerous persons, specifically felons and the mentally ill – and described this as merely dicta. Apparently, Thomas would approve of narrow gun regulations that “neither prohibit nor broadly frustrate” the exercise of Second Amendment rights. But the disabilities placed upon felons and the mentally ill, for example, are so broad that they would be valid only when applied to those who are not the “people” protected by the text of the Second Amendment.
Is Justice Thomas suggesting that the firearm possession prohibitions in 18 U.S.C. 922(g) – which impose broad disabilities on a wide variety of citizens, from felons to the mentally ill to unlawful drug users to persons dishonorably discharged from the armed forces to persons convicted of misdemeanor crimes of domestic violence – are unconstitutional? Is he suggesting that one of the most important gun regulations in the federal criminal law arsenal – the felon-in-possession law – is invalid? That strikes me as a remarkable position to take, especially in light of the fact that Thomas joined the Heller majority opinion. But Thomas’s description of this language in Heller as mere dicta, and his concern that these kinds of gun regulations sweep so broadly as to forbid firearms possession “at all times and in all places,” certainly suggests that Thomas is thinking in these terms.
I will be interested in seeing whether future constitutional challenges to the 922(g) prohibitions make use of Thomas’s language from Voisine. I cannot imagine there are any other votes on the current Court for such a reading of the Second Amendment. Such a reading would surely frustrate the enforcement of much federal criminal law, and runs counter to the claims of many gun rights advocates who say they still want to “keep guns out of the hands of criminals” and other dangerous people. Perhaps this is not what Thomas was getting at. And perhaps he would approve of similar gun possession bans that are narrower in scope (say, a ban for a definite time period). But his language seems at least to be a nod in the direction of Second Amendment rights that are broader than those recognized in Heller.