This is not a Second Amendment case, but rather one of statutory interpretationÂ with the Lautenberg Amendment, which prohibits people convicted of Misdemeanor Crimes of Domestic Violence (MCDV) from possessing firearms. The question is whether reckless conduct qualifies as a MCDV, or whether the federal statute requires knowing, intentional conduct. The Court ruled that the statute makes no distinction. Justice Thomas dissented, with Sotomayor joining parts I and II of his dissent. Part III of Justice Thomas’s dissent argued that because this is dealing with a fundamental constitutional right, that the Court should read the statute narrowly to avoid the constitutional issue. From Thomas’s dissent:
Finally, and most problematic for the majorityâ€™s ap- proach, a person could recklessly unleash force that reck- lessly causes injury. Consider two examples:
1. The Text-Messaging Dad: Knowing that he should not be texting and driving, a father sends a text mes- sage to his wife. The distraction causes the father to rear end the car in front of him. His son, who is a passenger, is injured.
2. The Reckless Policeman: A police officer speeds to a crime scene without activating his emergency lights and siren and careens into another car in an intersec- tion. That accident causes the police officerâ€™s car to strike another police officer, who was standing at the intersection. See Seaton v. State, 385 S. W. 3d 85, 88 (Tex. App. 2012).
In these cases, both the unleashing of the â€œforceâ€ (the car crash) and the resulting harm (the physical injury) were reckless. Under the majorityâ€™s reading of Â§921(a) (33)(A)(ii), the husband â€œuse[d] . . . physical forceâ€ against his son, and the police officer â€œuse[d] . . . physical forceâ€ against the other officer.
But this category is where the majority and I part com- pany. These examples do not involve the â€œuse of physical forceâ€ under any conventional understanding of â€œuseâ€ because they do not involve an active employment of something for a particular purpose.
This strikes me as correct, and an unintended consequence of the majority’s thinking. Here’s another passage from Part III of Thomas’ dissent:
A mother who slaps her 18-year-old son for talking back to herâ€”an intentional use of forceâ€”could lose her right to bear arms forever if she is cited by the police under a local ordinance. The majority seeks to expand that already broad rule to any reckless physical injury or nonconsensual touch. I would not extend the statute into that constitutionally problematic territory …
… Today the majority expands Â§922(g)(9)â€™s sweep into patently unconstitutional territory. Under the majorityâ€™s reading, a single conviction under a state assault statute for recklessly causing an injury to a family memberâ€”such as by texting while drivingâ€”can now trigger a lifetime ban on gun ownership. And while it may be true that such incidents are rarely prosecuted, this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors.
Worth noting that no other justice was willing to join that.