The Voisine ruling is a triumph for common sense on guns.

Supreme Court Breakfast Table

Our Legislators Could Learn a Lot from the Court Regarding Common Sense and Guns

Supreme Court Breakfast Table

Our Legislators Could Learn a Lot from the Court Regarding Common Sense and Guns
An email conversation about the news of the day.
June 28 2016 6:53 PM

Supreme Court Breakfast Table


Entry 25: Recognizing the limits of the Second Amendment.

gun voisine.
We need common-sense gun laws—better yet, Hoosier common sense.


The court’s 6–2 decision in Voisine, as Mark correctly has written, is most notable for being “the case that made Justice Thomas speak” and for the unusual pairing of Justices Sonia Sotomayor and Clarence Thomas in dissent.* Mark also seems clearly right in attributing Sotomayor’s vote to her sensitivity to the rights of criminal defendants. No question, we could use more of that perspective from the justices. In this case, though, the majority has it right: Congress closed a dangerous loophole in the ban on the possession of guns by felons to encompass those convicted of domestic violence, which the states often treat as a misdemeanor in part because of the results of plea bargains. Congress no doubt took notice of the toxic brew of domestic violence and firearms and the need to protect against the all-too-common deadly consequences.

Reading the opinions got me—and I bet lots of law professors—thinking about devising intricate and varied hypotheticals for law school exams. It’s very telling that the only decent one the dissent came up with is a father who “recklessly” injures his son while driving and texting. That hypo took me back decades to high school driver’s ed, taught by our gym teacher/football coach, who (to my shock) repeatedly told us, “I know you kids are going to drink to excess, but do not drink and drive because your car is a two-ton weapon, as dangerous as a loaded gun.” (The drinking age was 18 at the time, for what that’s worth.) With Mr. Purdy’s voice in my ear, I found that hypothetical especially unconvincing.


The Voisine majority and dissenting opinions turn on quite technical legal analysis, with the exception of Thomas’ final section, in which he writes only for himself to bemoan the majority’s lack of consideration that Second Amendment rights might be at stake. That absence of a constitutional avoidance gloss by any other justice might just reflect that the statutory question was sufficiently clear that gloss wouldn’t have mattered—and that the parties didn’t raise the issue. And the lower courts—to which we don’t pay enough attention—are struggling in important ways with the implications of gun rights for other contexts. This includes recent 4th U.S. Circuit Court of Appeals and 7th U.S. Circuit Court of Appeals opinions in which Judges Pamela Harris and David Hamilton made thoughtful and compelling arguments that police may have engaged in unlawful Terry stops and frisks involving suspects with guns that might have been reasonable in another time.

But we can’t help wonder whether Voisine signals the court’s more general willingness to uphold common-sense congressional limits on guns, which the recent Senate gun “filibuster” and House sit-in give hope may actually soon be politically possible.

Here in Indiana we hear a great deal about “Hoosier common sense.” Banning those convicted of domestic violence from possessing guns seems like quintessential Hoosier common sense, and so too some other proposed regulations.

Bloomington hosted a vigil just days after the Orlando mass shooting. More than 1,000 people gathered at City Hall, a powerful number in our university town with students gone for the summer. The week before that vigil, my husband John Hamilton, the mayor of Bloomington, addressed a downtown rally calling upon people to advocate for common-sense gun reform, with some compelling facts that President Obama also cited in calling for change:

We’ve become numb to the daily tragedy of gun violence. We’ve started thinking that this is normal. It is not normal. Americans are 25 times more likely to be murdered with guns than people in other developed countries. If yesterday was a typical day in America, 90 families woke up today to a shattered new reality, with an awful hole in their hearts, due to gun violence. It doesn’t need to be this way. It shouldn’t be this way. It mustn’t be this way. After Connecticut passed a law requiring background checks and gun safety courses, gun deaths decreased by 40 percent—40 percent. Since Missouri repealed their law requiring comprehensive background checks and purchase permits, gun deaths have increased to almost 50 percent higher than the national average.

Gun violence is so prevalent in our nation that many of us have been touched personally by it. I went to that Bloomington vigil with a close friend whose brother was robbed and murdered with a handgun while driving a taxi in Texas. My former Department of Justice colleague Tony Sutin was shot and killed in 2002 by a disgruntled student, while he was serving the underserved as dean of the Appalachian School of Law. Relatives of mine were teaching and attending school in the Newtown school district at the time of that terrible mass shooting. My cousin was a student at Virginia Tech at the time of that mass shooting. Another relative died as a result of a discharge of a gun he owned. I attended the funeral of one of the reproductive health care providers killed for their courageous service to women—an especially vulnerable group too little mentioned in this context. And of course, in many neighborhoods of our country, many people and families have much more intensive personal experiences with gun violence on a regular basis.

Just this week, protected by Indiana law that—as NRA-backed laws in the vast majority of states now do—preempts local regulation, a Bloomington resident prominently took his gun to our local swimming pool, causing distress and worry among parents just seeking summer relaxation. Is that common sense?

Thank the Supreme Court not only for its proper interpretation of a federal statute but also (with the sole exception of Thomas) for not imposing a false constitutional barrier to common-sense efforts to reduce the horrific gun violence in our country. Americans are not uniquely violent people, but we have some special problems with the prevalence of such deadly weaponry at our fingertips.

As President Obama said earlier this year:

The United States of America is not the only country on Earth with violent or dangerous people. We are not inherently more prone to violence. But we are the only advanced country on Earth that sees this kind of mass violence erupt with this kind of frequency. It doesn’t happen in other advanced countries. It’s not even close.

It seems clear to the president that our gun laws could use some Hoosier common sense. Thanks to the court’s ruling in Voisine, that still seems possible.

*Correction, June 29, 2016: This post originally misstated that Voisine was a 7–2 decision. (Return.)

Dawn Johnsen is the Walter W. Foskett professor of law at Indiana University Maurer School of Law. She headed the Office of Legal Counsel from 1997–98 and was the legal director of NARAL from 1988–93.