It’s impossible to know for sure why Justice Clarence Thomas chose Monday — when the Supreme Court was arguing a relatively minor case — to ask his first question from the bench in a decade.
However, one possible reason could have been that the subject matter at hand, the Second Amendment, moved the conservative justice to fire off several questions at the lawyer for the US government, Ilana Eisenstein.
“Justice Thomas is the strongest defender of Second Amendment rights on the Court,” UCLA law professor Adam Winkler told Business Insider in an email. “Long before the Court reinvigorated the Second Amendment, he was encouraging the justices to weigh in.”
The case that spurred Thomas’ torrent of questions centered on whether a “reckless” domestic-assault conviction counts as a federal “misdemeanour crime of domestic violence” that would carry with it a lifetime firearm ban. Thirty-four states have “reckless” assault laws that hold people accountable for carelessness that injures somebody else even when they don’t necessarily intend harm, according to SCOTUSBlog.
Thomas’ line of questioning seemed to suggest that he didn’t favour gun bans for misdemeanour domestic-violence offenders and thought such bans could be a slippery slope leading to the denial of other constitutional rights for people convicted of misdemeanours.
“Can you give me a — this is a misdemeanour violation. It suspends a constitutional right. Can you give me another area where a misdemeanour question suspends a constitutional right?” Thomas asked
Eisenstein, according to the court transcript.
The usually silent justice may have spoken up because neither side had addressed this question in the briefs they filed, according to Winkler.
“Thomas’s question was an important one. Why is the right to bear arms is the only right that people lose for a misdemeanour?” Winkler asked in his email, before going ahead and answering the question himself.
“The answer is recidivism. Even though some domestic violence is only a misdemeanour, it shows a propensity to engage in violence,” Winkler added. “Violent people shouldn’t have access to guns.”
Thomas may have spoken up because another staunch defender of the Second Amendment, Justice Antonin Scalia, died suddenly this month and left his seat empty on the court.
Regardless of Thomas’ motivations, this day will go down in history for many legal scholars — even though law professor Jay Wexler has lamented the public’s fascination with Thomas’s silence.
“This will probably come as a huge surprise to many readers out there, but some lawyers, even judges, like to talk just to hear themselves talk,” Wexler, a former clerk for Justice Ruth Bader Ginsburg, has written. “Justice Thomas has indicated that he sees no reason to talk for this purpose, and I have to say I kind of admire him for it.”
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