George Leef’s latest Forbes column focuses on the recent U.S. Supreme Court case that prompted the first question in a decade from Justice Clarence Thomas.
Supreme Court Justice Clarence Thomas is known for his silence during oral arguments. He has explained that he doesn’t think he learns much about a case that hasn’t already been covered in the briefs for the contending parties plus the numerous amicus briefs that explore many more aspects of the case. He prefers to listen and allow the lawyers to argue without further interruption.
Justice Thomas had not asked a question during oral arguments since 2006 when, during the arguments in Voisine v. United States on February 29, he posed a question to the government’s counsel, Assistant to the Solicitor General Ilana Eisenstein. …
… Ms. Eisenstein had just finished her argument that the First Circuit’s decision should be upheld when Justice Thomas spoke up: “Can you think of another area where a misdemeanor violation suspends a constitutional right?”
Taken aback, she floundered for a reply and Justice Thomas interjected, ”You’re saying that recklessness is sufficient to trigger a misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which at least as of now is still a constitutional right.” Again, he put the question: “Can you think of another constitutional right that can be suspended upon a misdemeanor violation of a State law?”
Ms. Eisenstein admitted that she knew of no other instance where a misdemeanor can have that effect, but tried this route of escape: “Other examples, for example in the First Amendment context, have allowed for suspension or limitation of a right to free speech or even free association in contexts where there is a compelling interest and risk associated in some cases less than a compelling interest under intermediate scrutiny.”
The exchange continued (you can read it in full here) for a while, but when Justice Thomas gets back to the First Amendment, he asks, “Let’s say that a publisher is reckless about the use of children…and it’s a misdemeanor violation. Could you suspend that publisher’s right to ever publish again?”
Eisenstein replies, “Your Honor, I don’t think you could suspend the right ever to publish again, but I think you could limit the manner and means by which…”
Justice Thomas: “So how is that different from suspending your Second Amendment right?”
Point made. The Second Amendment right to keep and bear arms (which Justice Thomas ominously says is “at least for now” a right) is treated as being in a different class from the rest.
