PA Bill Number: HB2663
Title: Providing for older adults protective services; and making a repeal.
Description: Providing for older adults protective services; and making a repeal. ...
Last Action: Referred to AGING AND OLDER ADULT SERVICES
Last Action Date: Nov 19, 2024
Is The Voisine Case Properly Understood as a 2A Case? :: 03/17/2016
New York, NY -(Ammoland.com)- The U.S. Supreme Court case, Voisine vs. United States, No. 14-10154 (S. Ct. Dec. 17, 2015), aptly illustrates the devious way in which the Federal Government slowly and quietly and inexorably operates to undermine the Second Amendment to the United States.
Is The Voisine Case Properly Understood As A Second Amendment Case?
Voisine is presumptively a Second Amendment case, notwithstanding that the U.S. Supreme Court specifically rejected a review of Petitioners’ Second Amendment claim when granting Petitioners’ writ of certiorari to the United States Court of Appeals for the First Circuit in Voisine vs. United States, 2015 U.S. LEXIS 6761; 136 S. Ct. 386 (2015).
The U.S. Supreme Court agreed only to hear Petitioners’ claim that a conviction for assault under a misdemeanor assault statute, involving reckless conduct by the misdemeanant, qualifies as a misdemeanor crime of domestic violence under federal law.
Still, although the U.S. Supreme Court granted Petitioners’ writ for certiorari on an issue not directly involving Petitioners’ right to keep and bear arms under the Second Amendment, this is not to suggest that – the Petitioners had hoped the U.S. Supreme Court would hear their second claim that Petitioners’ conviction for assault under one or the other or both of two of Maine’s misdemeanor assault statutes do not support the taking of Petitioners’ firearms under two federal statutes, 18 U.S.C. § 921(a)(33)(A) and 18 U.S.C. §§ 922(g)(9) – this is not to suggest that the Voisine case does not impact the Second Amendment. In fact, a negative U.S. Supreme Court ruling for Petitioners in Voisine – on an arcane issue of law involving the application of a federal statute on a conviction for simple assault under State law – would not only negatively impact Petitioners’ fundamental Second Amendment right to keep and bear arms, but negatively impact, as well, the Second Amendment right to keep and bear arms for a very large group of Americans.
A negative ruling in Voisine that ostensibly has nothing to do with the Second Amendment, because the United States Supreme Court has chosen not to consider Petitioners’ Second Amendment issue, does in fact have much to do with the Second Amendment.
For a ruling by the U.S. Supreme Court in Voisine extends well beyond Petitioners’ own civil rights. A negative ruling would peremptorily deprive a very large group of Americans from ever again lawfully owning and possessing a firearm in the United States. Moreover, a negative ruling in Voisine would serve to chisel away at the holdings in Heller and McDonald, and would do so insidiously, deviously, and quietly in the background, but no less dramatically, because the fundamental right of the people to keep and bear arms is attacked here in a roundabout way, and not directly. Justice Thomas drove home the point in his questions and comments to counsel for the Respondent, U.S. Government, Llana H. Eisenstein.
A negative ruling in Voisine would deny possession of firearms to anyone convicted of simple misdemeanor domestic violence under any State law, and that denial would operate indefinitely. So Voisine has far-reaching Constitutional implications on a large group of the Nation’s citizenry, whether or not the case is construed as a Second Amendment case. So, this is a case to watch!
Let us lay this case out for you in detail, so you can see for yourself that, for those who seek to destroy our Bill of Rights, the best way is more often through subterfuge rather than through a direct frontal assault. Antigun Legislators often do not wish to attract the public’s attention. What is out of sight is, in accordance with the adage, truly out of mind.
PART 2B
CASE HISTORY, LEADING UP TO THE U.S. SUPREME COURT HEARING
Two men, the Petitioners in the U.S. Supreme Court case, Voisine vs. United States, _______ U.S. _________ (2016) – Stephen Voisine and William Armstrong – are both U.S. citizens and residents of the State of Maine. The two men do not know each other. They were charged and convicted in two separate State Court cases.
Stephen Voisine was convicted in 2003, and once again in 2005, of assaulting a woman with whom he was in a domestic relationship under one of Maine’s two misdemeanor assault statutes, namely, 17-A M.R.S. § 207, titled, simply, “Assault.”17-A M.R.S. § 207 (1)(A) says, “A person is guilty of assault if the person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person. Violation of this paragraph is a Class D crime.” The penalty for a conviction of assault is set forth in 17-A M.R.S. § 207 (3). It says that, “for a violation under subsection 1, the court shall impose a sentencing alternative that involves a fine of not less than $ 300, which may not be suspended.”
The other misdemeanor assault statute is 17-A M.R.S. § 207-A, titled, “Domestic violence assault.” This statute is directed specifically to misdemeanor assault of a family member. 17-A M.R.S. § 207-A(1)(A) says, “A person is guilty of domestic violence assault if the person violates section 207 and the victim is a family or household member as defined in 19-A M.R.S. § 4002. In the absence of one or more aggravating factors, 17-A M.R.S. § 207-A(1)(A) is treated as a Class D crime, subject to the same penalty as prescribed in 17-A M.R.S. § 207 (1)(A).”
Now the woman whom Voisine was involved with and who was Voisine’s alleged victim, is not Voisine’s wife. The woman was simply Voisine’s girlfriend. Since Voisine’s girlfriend is not considered a family or household member under the State of Maine’s law, he could not be charged for assault under Maine’s misdemeanor domestic violence assault statute. He could only be charged with misdemeanor assault under Maine’s general assault statute and was charged only under Maine’s simple misdemeanor assault case. Keep this fact in mind as we proceed with a detailed description of this case.
The second Petitioner in the case, Voisine vs. United States, _______ U.S. _________ (2016), is William Armstrong. Armstrong was convicted in 2002 and 2008 of assaulting his wife in violation of the same general misdemeanor assault statute that Voisine was convicted of, 17-A M.R.S. § 207 (1)(A); but, because Armstrong was married, he was also convicted of under the State of Maine’s misdemeanor assault statute involving misdemeanor assault of a family member, namely, 17-A M.R.S. § 207-A, titled, “Domestic violence assault.” Once again, this statute is directed specifically to misdemeanor assault of a family member. 17-A M.R.S. § 207-A(1)(A) says, “A person is guilty of domestic violence assault if the person violates Section 207 and the victim is a family or household member as defined in 19-A M.R.S. § 4002.” In the absence of one or more aggravating factors, 17-A M.R.S. § 207-A(1)(A) is treated as a Class D crime, subject to the same penalty as prescribed in 17-A M.R.S. § 207 (1)(A).”
Subsequent to the State law convictions, and specifically because Voisine and Armstrong were convicted of misdemeanor assault under one or the other or both of Maine’s misdemeanor State assault Statutes, the federal Government charged both Voisine and Armstrong with violations of 18 U.S.C.S. § 922(g)(9) of the Gun Control Act of 1968. That section says, “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.” Federal officers thereupon took custody of the firearms of Voisine and Armstrong.
Recall that Voisine, unlike Armstrong, was not convicted of a misdemeanor under Maine’s misdemeanor “domestic violence assault” statute, but only under Maine’s general misdemeanor assault statute. Should this matter?
You would think that this is a critical factor that would preclude application of the Federal Statute, 18 U.S.C.S. § 922(g)(9) outright. After all, the federal Statute says, on its face, that it is directed against those individuals whose conviction for misdemeanor assault, involves assault against a family member. So you would think that 18 U.S.C.S. § 922(g)(9) should not apply to Petitioner Voisine – whether or not the federal Statute seemingly may apply to Petitioner Armstrong – precisely because the federal Statute specifically addresses “domestic” misdemeanor assault and does not address general misdemeanor assault situations. What does the case law say? Continue reading.
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PART 2C
PETITIONERS APPEAL THEIR FEDERAL COURT CONVICTIONS
In 2013, in separate actions, Voisine and Armstrong filed suit in U.S. District Court to recover their weapons on the ground asserting that 18 U.S.C.S. § 922(g)(9) does not apply to a conviction for a non-violent misdemeanor offense; that Defendants’ did not violate the federal Statute; and that the taking of Defendants’ firearms does violate their Second Amendment right to keep and bear arms. The U.S. District Court for the District of Maine denied their motions. The Defendants’ then appealed the adverse decisions of the U.S. District Court to the United States Court of Appeals for the First Circuit.
The United States Court of Appeals for the First Circuit affirmed the District Court’s denial of Armstrong’s Motion in the case, U.S. vs. Armstrong, 706 F.3d 1 (lst Cir. 2013); and, in a subsequent case brought by Voisine, United States vs. Voisine, 495 Fed. Appx. 101, 2013 U.S. App. LEXIS 1350 (lst Cir. 2013), the Court concluded that, because the arguments presented by Voisine are exactly the same arguments that Armstrong made, the Court did not need to reiterate its arguments in Voisine, and would simply incorporate its reasoning in the earlier case brought by Armstrong. The United States Court of Appeals for the First Circuit thereupon affirmed the District Court’s denial of Voisine’s Motion as well. And subsequently, the United States Court of Appeals for the First Circuit, incorporated the two cases, under the heading, United States vs. Voisine.
Briefly, the United States Court of Appeals for the First Circuit ruled that, since 18 U.S.C.S. § 922(g)(9) does apply to a person convicted of simple assault in a domestic violence case, a person so convicted must forfeit his firearms under 18 U.S.C.S. § 922(g)(9). The United States Court of Appeals for the First Circuit also ruled that application of 18 U.S.C.S. § 922(g)(9) specifically applies to “a purportedly non-violent offensive physical contact misdemeanor conviction.” Most strikingly, the Court ruled that such prior conviction on a charge of non-violent offensive physical contact misdemeanor does not violate a defendant’s Second Amendment rights. At the stroke of a pen, the United States Court of Appeals for the First Circuit dismissed out-of-hand, without any attempt at argument, any suggestion that Petitioners’ civil rights under the Second Amendment were violated even as those rights were summarily taken. Keep that point in mind as we continue our discussion of this case.
In ruling against both Armstrong and Voisine the United States Court of Appeals for the First Circuit relied on its earlier holding and reasoning in the case United States vs. Booker, 644 F.3d 12 (lst Cir. 2011). In the Booker case, as in the U.S. Supreme Court case, presently before the high Court, the question posed turned on the legal meaning of the phrase, “misdemeanor crime of domestic violence.” In the Booker case the United States Court of Appeals for the First Circuit considered the meaning of the phrase in reference to Maine’s simple assault statute, 17-A M.R.S. § 207 (1)(A). The First Circuit Court of Appeals, in Booker, first pointed out – having relied on yet another earlier case, United States vs. Meade, 175 F.3d 215 (lst Cir. 1999), that the relationship between the misdemeanant and the victim was not a necessary factor in determining application of 18 U.S.C. § 922(g)(9). In other words, notwithstanding that 18 U.S.C. § 922(g)(9) refers to domestic violence situations, 18 U.S.C. § 922(g)(9) is readily applicable to any misdemeanor assault situation. Thus, anyone who is convicted of a simple assault charge under any State Statute, can find him or herself subsequently charged by the U.S. Government under 18 U.S.C. § 922(g)(9) for the mere misdemeanor crime of domestic violence and, if found liable under 18 U.S.C. § 922(g)(9), that person must surrender his firearms.
Think about that for a moment. If this reasoning by the United States Court of Appeals for the First Circuit is sound, then a person who is convicted of simple assault – that does not arise to the level of felony assault – against another person who is not related to that person in a familial context may still be charged under 18 U.S.C. § 922(g)(9) and, if convicted under the federal statute, that person will forfeit his or her firearms and those firearms will be forfeited indefinitely.
This reasoning actually conflicts with the Circuit Court of Appeal’s later decision when it must reconsider its decision on remand by the U.S. Supreme Court.
So, the United States Court of Appeals for the First Circuit determined, in United States vs. Meade, 175 F.3d 215 (lst Cir. 1999), that the nature of the relationship between the misdemeanant and the victim is irrelevant. What, then, did the United States Court of Appeals for the First Circuit have to say about the nature of the aggression. The United States Court of Appeals for the First Circuit had not yet determined whether the misdemeanant’s aggression toward the victim was such that it falls within the scope of 18 U.S.C. § 922(g)(9). But, two years later, in the case United States vs. Nason, 269 F.3d 10 (lst Cir. 2001), the United States Court of Appeals for the First Circuit, did deal specifically with the nature of the misdemeanant’s aggression. The Court parsed the meaning of the phrase “offensive physical contact” as the phrase appears in Maine’s simple assault statute, 17-A M.R.S. § 207 (1)(A). The Court ruled that, so long as “physical force” was employed in the physical contact, it is not necessary to delve into the nature or amount of force used by the misdemeanant against the victim. In other words, the victim need not suffer “bodily injury” as a result of the use of “physical force.” A mere touching, then, if offensive or insulting, constitutes “offensive physical contact” within the meaning of 17-A M.R.S. § 207 (1)(A) sufficient to warrant application of 18 U.S.C. § 922(g)(9), resulting in denial of one’s Second Amendment civil rights,
But, the United States Court of Appeals for the First Circuit was not yet done. In United States vs. Booker the United States Court of Appeals for the First Circuit turned to the issue whether application of the federal Statute turned on the state of mind of the misdemeanant. The Court determined that the state of mind of the party convicted of simple assault in Maine, has no legal bearing on application of 18 U.S.C. § 922(g)(9), as the federal Statute does not talk at all about the state of mind of the misdemeanant – that is to say, the federal statute does not talk about the misdemeanant’s mens rea. To determine whether 18 U.S.C. § 922(g)(9) applies to a person’s conviction under Maine’s simple assault statutes, the United States Court of Appeals for the First Circuit looked to what the language of the federal Statute actually says and the Court saw that the federal Statute says nothing about the misdemeanant’s state of mind. The Statute only looks to whether, one, there was a misdemeanor, two, that the misdemeanor had, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, and, three, that the misdemeanor was committed against a domestic intimate or similarly situated individual. As long as those three elements are satisfied, the United States Court of Appeals for the First Circuit opined that the federal Statute kicks in, and one’s firearms will henceforth be forfeited.
But, is the reasoning of the Court correct. Let’s take another look at what 18 U.S.C. § 922(g)(9) actually says:
““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.”
Well, the critical operative language in 18 U.S.C. § 922(g)(9), as applied to the Voisine case, is: “convicted in any court of a misdemeanor crime of domestic violence.” The Petitioner in Meade argued that the failure of Congress to specify the relationship between the misdemeanant and the victim was absolutely irrelevant.
Thus, it was that the firearms of Petitioners, Voisine and Armstrong were taken and forsaken, forever. Voisine and Armstrong thereupon filed their petition for a writ of certiorari. The U.S. Supreme Court considered the petition but, before agreeing to hear the case, the high Court remanded the case to the United States Court of Appeals for the First Circuit for further action, specifically on a matter pertaining to the high Court’s prior decision in the case, United States vs. Castleman, 134 S. Ct. 1405 (2014). The issue: when a misdemeanant is convicted of simple, misdemeanor domestic violence, how much physical force must the misdemeanant use against his or her intended victim to warrant application of 18 U.S.C. § 922(g)(9)? The United States Court of Appeals for the First Circuit had ruled that any non-violent physical touching satisfied the application of 18 U.S.C. § 922(g)(9). The U.S. Supreme Court disagreed and remanded the case to the First Circuit to render an opinion on the degree of physical force consistent with the high Court’s earlier opinion, in Castleman. We discuss the Castleman case and the manner in which the United States Court of Appeals for the First Circuit applied Castleman to the Voisine case.
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PART 2D
THE CASTLEMAN CASE AND THE MANNER IN WHICH THE U.S. COURT OF APPEALS FOR THE FIRST CIRCUIT APPLIED CASTLEMAN TO THE VOISINE CASE
Justice Sotomayor wrote the Opinion for the Majority in Castleman. Justice Scalia filed a separate Opinion, agreeing in part, and concurring in the judgment. Justice Alito also filed a separate Opinion also wrote a separate Opinion, concurring in the judgment and Justice Thomas joined in Justice Alito’s Opinion. It is curious to note that, in the opening paragraph of Justice Sotomayor’s Majority Opinion, she asserted a moral standard behind Congressional enactment of 18 U.S.C. § 922(g)(9).
Supreme Court Justice Sonia Sotomayor
Justice Sotomayor said, “Recognizing that ‘[f]irearms and domestic strife are a potentially deadly combination,’ United States v. Hayes, 555 U. S. 415, 427 (2009), Congress forbade the possession of firearms by anyone convicted of ‘a misdemeanor crime of domestic violence.’ The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. The question before us is whether this conviction qualifies as ‘a misdemeanor crime of domestic violence.’ We hold that it does.” Justice Sotomayor added, “Congress enacted §922(g)(9), in light of these sobering facts, to “‘close [a] dangerous loophole’” in the gun control laws: While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors.” Think about that last point as we continue with our case analysis.
James Alvin Castleman, the respondent, was convicted of intentionally or knowingly causing bodily injury to the mother of his child, in violation of Tenn. Code Ann. §39–13–111(b) (Supp. 2002). The U.S. Government subsequently charged Castleman with violation of 18 U.S.C. § 922(g)(9). Castleman moved to dismiss the 18 U.S.C. § 922(g)(9) on the ground that conviction under the Tennessee Statute does not rise to the level of misdemeanor domestic violence under the federal Statute because the degree of force required to support a conviction under the Tennessee Statute is much less than the degree of force necessary to support a violent battery charge under federal law, and, so, 18 U.S.C. § 922(g)(9) is misapplied in his case. The District Court agreed with Castleman and dismissed the Government’s suit against Castleman.
Not content with the decision of the District Court, the U.S. Government appealed the decision to the United States Court of Appeals for the Sixth Circuit. A divided Court held that the degree of force required to support application of 18 U.S.C. § 922(g)(9) is the same as required to support a violent felony charge as the expression ‘violent felony’ is defined in federal law, namely, 18 U.S.C. § 924(e)(2)(B)(i), which means ‘violent force.’ The United States Court of Appeals for the Sixth Circuit reasoned that Castleman’s conviction for the misdemeanor crime of domestic violence under Tennessee law cannot support misdemeanor domestic violence under 18 U.S.C. § 922(g)(9) because a person can be convicted under the Tennessee Statute for a slight, non-serious physical injury. Such conduct, then, that cannot be considered violent use of force.
The United States Circuit Court of Appeals accordingly ruled in favor of Castleman, affirming the decision of the United States District Court. The U.S. Government then appealed the adverse decision to the U.S. Supreme Court. The high Court decided to hear the case since a split had occurred among the various United States Circuit Court of Appeals. The United States Supreme Court opined that simple common-law battery that does not involve serious physical injury is sufficient to support a charge of misdemeanor domestic violence under 18 U.S.C. § 922(g)(9) and that such simple common-law battery is what Congress had in mind when it enacted 18 U.S.C. § 922(g)(9). So, Castleman’s conviction under the Tennessee Statute qualifies as a crime of domestic violence under the federal Statute. The U.S. Supreme Court’s Majority thereupon reversed the decision of the United States Court of Appeals for the Sixth Circuit.
Justice Antonin Scalia
Justice Scalia concurred with the Judgment but disagreed with the Court’s reasoning. Justice Scalia opined that the degree of force necessary to support the federal charge of misdemeanor domestic violence under 18 U.S.C. § 922(g)(9) must mean use of force that produces serious physical injury.
Justice Scalia argues that the Majority on the Court improperly expands the meaning of misdemeanor domestic violence as it appears in 18 U.S.C. § 922(g)(9) well beyond that intended by Congress. Justice Scalia apparently concurred in the judgment only because the Tennessee’s domestic violence Statute was itself overly broad and made no distinction between degrees of force necessary to support a conviction of misdemeanor domestic violence.
But, purportedly, the Congress did intend to draw a distinction between degrees of force when it enacted the misdemeanor crime of domestic violence Statute. Clearly, Justice Scalia did not construe Congress that would enact a law that would have, as its effect, the denial of one’s Civil Rights under the Second Amendment for mere offensive touching of a domestic partner. As Justice Scalia said, and as certainly now come home to roost: “When everything is domestic violence, nothing is.”
On remand to the United States Court of Appeals for the First Circuit, the Supreme Court ordered the Circuit Court to reconsider the Circuit Court’s decision in light of the high Court’s holding and reasoning in Castleman.
The holding in Castleman turned on the meaning to be given to the physical force requirement of 18 U.S.C. § 922(g)(9). The Petitioners, Voisine and Armstrong, argue that the issue to be decided is whether a reckless act is enough to constitute use of physical force. In cases other than the one under which they were charged by the U.S. Government, namely 18 U.S.C. § 922(g)(9), recklessness, as a state of mind, is not sufficient to support the federal charge.
The Court of Appeals for the First Circuit did not allow the Petitioners to frame the issue in this way. Rather, the Circuit of Appeals framed the issue as to whether recklessness fits within the federal statutory scheme of “use of physical force” in the context of domestic violence cases only. The Circuit Court of Appeals reasoned that, in framing the issue in this way, the Court was properly taking into account the reasoning of the U.S. Supreme Court in Castleman, as the high Court required of the Circuit Court. That is to say, the Circuit Court of Appeals would construe and was construing statutory language in the context of domestic violence cases only.
The Circuit Court of Appeals opined that the misdemeanor crime of domestic violence as it appears in 18 U.S.C. § 922(g)(9), was meant to be read very broadly to include physical force against a domestic partner that occurs through recklessness, as a state of mind, regardless of the amount of physical force applied or the amount of injury that accrues to the victim. Note: This is in contradistinction to Justice Scalia’s reasoning in his concurring Opinion in Castleman.
The United States Court of Appeals thereupon reaffirmed their earlier affirmance of the decision of the U.S. District Court, finding their earlier cases indeed conforming to Castleman. The decision was not, however, unanimous.
In Part 3 of the Voisine case, we will look at the Parties’ briefs and at the transcript of the Hearing before the U.S. Supreme Court, with particular attention to the questions posed by and the comments of Justice Thomas who understands that a negative decision in Voisine can and will seriously undermine the Second Amendment to the U.S. Constitution despite the fact that the U.S. Supreme Court has specifically rejected hearing Petitioners Second Amendment issue.
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