Justice Thomas Speaks Out In The Voisine Case – United States vs. Voisine : Part 1

By Roger J. Katz, Attoney at Law and Stephen L. D’Andrilli
This is the first of a three part series article.

Justice Clarence Thomas
Justice Clarence Thomas
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)- Anyone who keeps abreast of the U. S. Supreme Court knows that Justice Clarence Thomas broke a ten-year silence when he posed questions to counsel during oral argument on February 29, 2016 in the case United States vs. Voisine, No. 14-10154 (S. Ct. Dec. 17, 2015).

The other seven Justices retained an austere demeanor. But they must surely have been surprised at Justice Thomas’ uncharacteristic lack of reticence. The Press, for its part, was noticeably, and understandably, thunderstruck.

One may speculate why Justice Thomas chose to take part in the questioning of counsel in this case, at this time. Not improbably, Justice Thomas did so, in part, out of deep respect for the memory of Justice Antonin Scalia.

Justice Scalia would have had much to say in Voisine as the case touches on two landmark Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.”

In the subsequent McDonald case, the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” Together, the two cases strengthen the Second Amendment more so than any previous holding of the high Court. The two cases constrain local, State and federal governments from whittling away at Americans’ fundamental right of the people to keep and bear arms in their individual capacity.

Justice Scalia wrote the Majority Opinion in Heller, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kennedy. Justice Samuel Alito wrote the Opinion for the Majority in McDonald, joined by Chief Justice Roberts, and Justices Scalia, Thomas and Kennedy. Not surprisingly, the liberal wing of the Court, comprising Justices Ginsburg, Sotomayor, Kagan, and Breyer dissented, and they did so strenuously.

Now, contrary to common belief, the U.S. Supreme Court, does not have to accept and, indeed, does not accept every case that happens to come before it. No one can appeal an adverse decision to the U.S. Supreme Court as a matter of right. Indeed, the Supreme Court grants A Petitioner’s writ of certiorari in only a few cases in any given term.

And, in the Court’s information sheet, presented to those who seek to have their case heard, the Court says clearly, even bluntly, that “review on writ of certiorari is not a matter of right but of judicial discretion.”

Generally, the high Court will agree to hear a case where there is disagreement and conflict among the various federal Circuit Courts of Appeal. This often takes years to develop. Even so, many cases that the high Court does agree to hear often involve arcane legal issues, very narrow in scope, that are difficult for the non-lawyer to grasp, and, so, quite understandably, difficult for anyone but a lawyer to appreciate. The Voisine case may, at first glance, appear to be just such a case. It isn’t.

To be sure there is a complex, arcane issue here, but there is also a straight-forward Second Amendment issue as well. The Second Amendment issue would have been given no consideration at all but for Justice Thomas’ interjection. Be thankful that Justice Thomas spoke up during oral argument.

This is not theatrics as presented by the mainstream media. Justice Thomas’ questions and remarks were precise, well-honed, to the point and surely took the U.S. Government off guard.

In the Opinion to be handed down in the coming months it is unlikely that the Court will not give the Second Amendment issue at least some consideration and will do so precisely because of, one, Justice Thomas’ questions to counsel for Respondent, U.S. Government, two, counsel’s responses to the Court, and, three, Justice Thomas’ comments. If no other Justice mentions the Second Amendment in the Majority’s Opinion, or in a concurring or dissenting Opinion, Justice Thomas most certainly will.

Now, a salient issue in Voisine does involve the meaning to be given a word phrase in one particular section of a lengthy federal Statute.

Second Amendment
Second Amendment

Nonetheless, as we heretofore explained, the Voisine case is the first Supreme Court case to be heard by the high Court that does impact the Second Amendment. In fact, Petitioners did timely and properly raise a Second Amendment claim in their Briefs to the United States Court of Appeals for the First Circuit. And that claim was preserved; and that issue was ripe for review by the U.S. Supreme Court when it granted Petitioners’ Writ of Certiorari. Moreover, while the Second Amendment issue was set forth with particularity as a salient issue in Petitioners’ Brief, the Second Amendment claim was not set forth as an issue in the Government’s own Brief in Opposition to the Brief of Petitioners. And the Government, in its Brief in Opposition to the Brief of Petitioners, addressed Petitioners’ Second Amendment claim only perfunctorily, giving little thought to it, seemingly in deference to and happily therefor to the United States Court of Appeals for the First Circuit’s treatment of it, for the First Circuit dismissed Petitioners’ Second Amendment claim outright.

In fact during oral argument before the Supreme Court, the Second Amendment was only mentioned twice and that occurred toward the end of oral argument when Justice Thomas brought the issue up. Justice Thomas did so, in part, as we said earlier, because Justice Scalia certainly would have done so had he lived. And, Justice Scalia would have done so for a very good reason, quite apart from and notwithstanding the otherwise cursory treatment of the Second Amendment issue by the United States Court of Appeals for the First Circuit Court.

For Voisine is the first case to come before the Supreme Court that implicates the Second Amendment, however obliquely or tangentially, or seemingly cursorily since the high Court decided the McDonald case in 2010, over one-half decade ago.

Although the other Justices took great pains to avoid entertaining the Second Amendment issue in Voisine – preferring to address, alone, the meaning attached to a few words in one federal Statute – Justice Thomas would not let the matter rest, much to the satisfaction of Petitioners, who clearly sought to have their Second Amendment issue heard, and much to the chagrin of Respondent, the United States Government, that sought to keep the Second Amendment issue moot.

Moreover, by querying Government’s counsel on Petitioners’ Second Amendment claim, Justice Thomas may have been initiating a not so subtle payback to other Justices for a snubbing that both he and Justice Scalia suffered at the hands of those other Justices. For, both Justices Scalia and Thomas were more than a trifle perturbed that the majority of the Justices of the Supreme Court denied certiorari in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). The Seventh Circuit in Friedman clearly manifested its contempt for the high Court’s holdings in Heller and McDonald. Justices Scalia and Thomas clearly wanted, and had expected, the high Court to grant certiorari in Friedman and, by failing to do so, Justices Scalia and Thomas expressed their righteous indignation by drafting a dissenting Opinion in Friedman.

Very rarely do Justices explain their reason for refusing to grant a writ of certiorari in a case. Even more rarely will one find a dissenting opinion written by a Justice, expressing disfavor for the failure of the majority of Justices to grant the writ in a case.

Surely, had the Supreme Court granted Petitioner’s writ of certiorari in Friedman, Justices Scalia and Thomas would have taken the Seventh Circuit to task for patently ignoring the Heller and McDonald holdings. The Arbalest Quarrel discusses the Friedman case at length in the article, titled, A Court Of Law That Rejects U.S. Supreme Court Precedent Undermines The Rule Of Law And Undercuts The U.S. Constitution,” posted on December 14, 2015.  For our discussion of Friedman and its importance to the Heller and McDonald cases, readers are encouraged to read our article that may be accessed at this link: http://arbalestquarrel.com/4241-2/.

The Scalia Chair
In spirit Justice Scalia was certainly in attendance during oral argument in Voisine. : The Scalia Chair

In spirit Justice Scalia was certainly in attendance during oral argument in Voisine. Since the Supreme Court would not entertain the Friedman case which was a direct and audacious attack by a United States Circuit Court of Appeals on the clear and cogent holdings in Heller and McDonald, Justice Thomas, on behalf of Justice Scalia, clearly intended to raise and, so, did raise Petitioner’s Second Amendment issue in Voisine – a case that the U.S. Supreme Court did decide to entertain.

From the get-go it had been clear that no other Justice would weigh in on the Second Amendment implications of Voisine, and take the Government to task. Justice Thomas made certain that Justice Scalia’s disdain for a federal Government that cares not one whit for the sanctity of the Second Amendment would dare not go unchallenged.

Americans who understand and can appreciate the importance of our Bill of Rights as the foundation of a free Republic and who can, in particular, understand and appreciate the importance of the Second Amendment as a critical check on the accumulation of power by the Federal Government, and by improvident State governments as well, will do well to ponder the Nation’s incredible loss. Justice Scalia, together with Justice Thomas, made adamantly clear that the right of the people to keep and bear arms is an individual right unconnected to a person’s participation in a militia. The Heller decision rankles several Justices on the Supreme Court and many Globalists, both in this Country and outside it, as well, who are working quietly but incessantly and inexorably in the shadows, intent on undercutting America’s Bill of Rights, generally, and undermining America’s Second Amendment, particularly.

We know, without doubt, that President Obama – or her royal Majesty, Queen Hillary Rodham Clinton – seek to nominate to the highest Court of the Land, a person who would chomp at the bit to reverse Heller and McDonald on the ground that, for them, the cases are discordant. They are discordant to these judges and to powerful, ruthless individuals because they happen to strengthen rather than weaken America’s Bill of Rights.

In Part 2 of this Article, we will deal in depth, with the legal issues in Voisine and you will come to understand, one, why the high Court, apart from Justice Thomas, does not wish to deal with the impact that a negative decision in Voisine would have on the Second Amendment and, two, how it is that a specific question posed by Justice Thomas to counsel for the U.S. Government elicited from counsel a most remarkable, illuminating, and, in fact, frightening comment. You will come to see why a negative holding in Voisine does have negative implications for our Second Amendment.

So it is that the mainstream media would much rather keep the dire implications of Voisine in the shadows. We, on the other hand, intend to bring those implications out, for all to see, into the light of day.

In so doing, we trust we will help keep the memory of Justice Scalia alive, and in keeping Justice Scalia’s memory alive, preserve, as well, the holdings in Heller and McDonald that bespeak Justice Scalia’s devotion to the import of the Second Amendment. Ever mindful, then, are we of those who are hell-bent in destroying it.

About The Arbalest Quarrel:

Arbalest Group created `The Arbalest Quarrel’ website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.

For more information, visit: www.arbalestquarrel.com.

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Wayne, excellent! Most Americans don’t understand that the Declaration has never been recinded. That’s right gentle readers it is ours to fall back on and use as we see fit.

Wayne Clark

Reading each & every comment, some, more fully than others, I see a mixture of sensibility & stupidity. One thing I have noticed an abundance of is, the referral of the 2A as; the backbone of our rights, the bane of our problems, the source of our strength & the target for our adversaries. What I’ve not seen a reference to, is where it originates from. Whether you are for the right to bear arms or against it, the fact of the matter is what was written before our Bill of Rights were recorded…& that was, The Declaration of Independence.… Read more »



Not so long winded as some others.


Al Feldore

Does anyone ever wonder why laws are so complex and often contradict themselves in other laws? Simplicity is often the bane of many people’s existence. So much so that a good number of people make their livings on massive confusion and the ability to never have a clear easy to understand , common sense approach. Let’s always think of the possibility that a minute detail may occur and write the law for that. Common sense judiciaries have been often replaced be emotional, political thought processes and agenda moving. Maybe that’s why Trump is around. People are just fed up with… Read more »


Al Feldore cites one possible reason for the presence of Trump. I suggest that people read his post, it isn’t overly lengthy, and then think on his reasoning, clearly put in his last paragraph.


I guess that if going through a divorce, read the fine print. Of course, I would assume that your lawyer was paying attention to details, given that he or she was being paid to so do.

Craig Butelo

Everyone, including Nancy, should get a copy of War On Guns : Arming Yourself Against Gun Control by John Lott.
He debunks the Blumberg statistics as only an economist/mathematician can.
Not only is this a peer reviewed study of how people twist numbers to suit their own thinking it is a damn good read.
I paid about 12 bucks on Amazon.


Unfortunately, what the Supreme Court is dealing with is a constitutional issue that goes to the very heart of who, how and why we are all here. It has less to do with personal protection (I do support carry rights, of course) than the rights of our citizens to pick up arms as needed to defend themselves against a government drunk with power (e.g. Obama, Clinton, etc.). If we lose this right, we have zero defense against these power-holics. Good thing I don’t have a bully pulpit ‘cuz y’all would not like some of my remedies to get things back… Read more »


The Second Amendment does not give rights, it acknowledges them.

In the subsequent McDonald case, the U.S. Supreme Court held that,
“the Second Amendment creates individual rights that can be asserted against state and local governments.”

Gregory Armand

I noticed a trend in the responses that should be thought about. Many people used the term “charged” as in relation to “those who have been charged with domestic violence” and “those who have been charged with a felony” should lose their right to have a firearm. You should note that a charge of anything is not a finding of guilty! Anybody can be “charged” with something at any time and, in an abusive “police state” situation a “charge” can be made to control an individuals rights. That situation must also be paired with the idea that a person who… Read more »


Indeed! Felony conviction or adjudication do to an extreme mental state where one is a threat to the welfare of one’s self or others are the criteria needed to rescind a lawful citizen’s 2A rights. A presumption of innocence is what’s missing in all of the above. (Not yours Greg, I’m speaking to the thread). What is truly sad, and also missing from our society is the idea that you cannot assert your rights as an individual. We give our doctors much latitude and discretion with our health… They’re killing us everyday; we give our politicians the obligation to defend… Read more »


Could someone translate this article into poor mans speak!


It’s a “Part 1” of 2 series commentary. It’s just to get us fired up and conversing for the next article which should provide more details… I hope. 😀

Bob M.

What should concern American’s the most is that 7 berobed dictators are viewed as the final arbiters of what is and what is not constitutional. This was not the intent as stated in the Constitution. The purpose of the Supremem Court was as an arbiter of last resort in ambassadorial and inter-state matters. The ultimate desider of Constitutionality is supposed to be the states and ultimately the individual.


Well said


We do not need “background checks” (NICS)
What we DO need is felonious individuals in prison! (rather than fill the places with pot-heads)
IMO IF you are considered “good and safe enough” to live free in society – after being “re-habilitated” then surely you should be able to ensure your safety as well as anybody else?
THAT IMO is the problem. Put and keep the “bad guys” behind bars – Life means life not 10years with “good behavior”

Gregory Armand


Donnie the Lion

I think it is perfectly reasonable to tell people who have demonstrated TERRIBLE, if not criminal-level judgment, “No gun.”


Donnie, do you REALLY believe it is OK to deprive someone of his right to self-defense, a right specifically protected by our Constitution, without first going through the legal process of finding him guilty of a crime? Who gets to judge whether his judgment was actually “TERRIBLE” if not criminal? There are many in our society today who would say that it is an example of “TERRIBLE” judgment, simply to carry a legally concealed pistol in public. To use an analogy, would you think it was OK to deprive someone of the right to send letters to an editor, or… Read more »

Gregory Armand

OK … then I say we need to stop anyone who “demonstrates TERRIBLE, if not criminal-level judgment”, no right to free speech. Let’s say … Hillary, you lied, without question since this case is ON VIDEO, that you were under sniper fire in Bosnia and had to run to your vehicle. Therefore, since you “demonstrated TERRIBLE, if not criminal-level judgment” towards your right to free speech, NO FIRST AMENDMENT!” OK …. let’s say some despot is elected. Can they not determine “anybody who voted for the other party demonstrated TERRIBLE, if not criminal-level judgment, NO VOTE”. Since the police not… Read more »


Thank God for the Supreme Court and its commonsense ruling to protect victims of domestic abuse. There’s no doubt they have saved many lives that would have been lost had the ammosexuals gotten their way. Let’s continue the good work and have real commonsense laws on the books to regulate high-powered military-style assault rifles and the like.


Please give some examples (make and model) of “high-powered military-style assault rifles” that the average American can own.


if you mean the Modern Sporting Rifle, also known as the AR 15 and clones, those things are so wimply (the opposite of “high powered”) most states do not allow anyone to use them for hinting deer. Too feeble to assure a clean kill, thus wasting game. My ancient old Marlin .30.30 lever action saddle gun is far more powerful, every bit as accurate, and looks” normal”. The “danger” inherent in the Modern Sporting Rifle is between your ears. Further, are you aware that nearly every divorce finling these days will include, whether necessary or baseless, a restraining order that… Read more »


See my comment, which if it appears might well be far removed from your post, which in part I responded to.


I find it unbelievable and amazing that liberals stand behind late term abortions, but not for the right to defend one’s home and family. It speaks volumes about the left wing and the so-called “progressives”.

Wayne Rizor

Don’t confuse the right to defend your home and family with someone who obtains a firearm to get even with a neighbor or spouse because of a domestic violence conviction or a past felony conviction. I’m a liberal progressive and I support your right to own a firearm, but If you’ve been charged and convicted of domestic violence or of a felony, I believe you’ve forfeited your right to own a firearm.

Maria Dayley

I agree 100% with you. The US is one of the few countries where the idea exists that EVERYONE has a right to be armed, regardless of their mental status or previous violations of the law. That’s why we have such a high murder rate.


Maria you don’t have a clue what you are talking about. It is against the law for a CONVICTED felon to own or possess a firearm of any kind. That has been upheld in the courts. It is also against the law for persons CONVICTED of domestic violence to have a gun. Even those involved in domestic violence must turn in their firearms until the courts return them. Also, there are numerous types of what you call “mental illness” that don’t have anything to do with a person’s ability to properly handle and own a firearm. A person receiving counseling… Read more »

Hipshot Percussion

Just for the record, our murder rate is the lowest its been since 1957, and in fact is lower than the murder rate in 1950. That being said, I carry in the off-chance someone attempts to make me and or mine one of those statistics.


@Maria – We also aren’t even in the top 100 countries for high murder rates! Additionally, Chief forgot to mention that the majority of murders are by other than guns and the majority of guns used are illegally obtained; in fact the medical/pharmaceutical profession “murders” more people than anything else, and they do it “legally”!. Laws only hinder the law abiding – criminals could care less about the law, that is why they are CRIMINALS!!!!


Very few have that “IDEA” and that is not the case in the USA. That’s why there is the NICS system to prevent purchases by those who are “mentally defective” or felons who have not had their rights restored etc.

Gene Ralno

Sorry Maria, the U.S. murder rate is only 30 thousandths of one percent higher than the U.K. murder rate. It’s at a sixty year low. And since you didn’t know that, here’s another little fact your leaders won’t ever admit to you. When considering nations with lower murder rates, one also must consider the large number of murders by illegal aliens, a major factor in the U.S. and in no other place on earth. Factoring out the GAO’s latest estimate of 5,639 annual murders by illegal aliens, the U.S. murders per 100,000 would be reduced to 2.1. That number would… Read more »

Gregory Armand

Sadly, Maria, you are buying into a narrative that is not correct. Other examples – do you believe in the “gun show loophole”? Do you think it is easier to get a Glock than a book? Do you think people can walk into a store and buy a gun without a background check? The NRA buys politicians? These are examples of narratives that are given to the US people in order to push an agenda. Our crime rate is not that much higher than gun-free countries especially if you cut out the major (and gun-free) cities of Chicago, New York,… Read more »


True sort of. There are far too many “felony” offenses on the books. Late on payments to certain government agencies, driving 20+ mph over posted limit, shooting feral cats in one’s own backyard….. limit “disabling” felony convictions to ONLY those involving harm to other persons (not property alone) then move forward. Further, you man/mayn’t know that these days divorce attorneys issue restraining orders as a matter of course, and seem to have an uncanny knack for “legally” serving the papers and rules for responding/contesting in such a manner the restrainant never knows about the hearing, or has such short notice… Read more »


What do you have that is so important that someone wants to break into your home and hurt your family? Are you going to be with your family every moment of every day to defend them against the “bad guys” out there? Are you going to carry your gun everywhere you go and be ready to use it if you perceive danger? What protects you from the police if you are standing there with a smoking gun when the police arrive and think you are the shooter? What makes people think you are a “good guy” because you have a… Read more »


Did you seriously just say, “What do you have that is so important that someone wants to break into your home and hurt your family?” What world do you live in? Are you so wealthy that you have armed guards both around you and live in a protected area? Do you not read the news? I can list hundreds if not thousands that have been killed/raped/beaten for very little. Just do a quick search of the internet, watch news at night, walk around alone at night and see if you don’t have something that someone would use and kill you… Read more »


Well said Tex.


Nancy – You are a fool. Criminals and nuts need very little reasoning or no reasoning at all. . . . .One day you will find out how it feels with your twisted sense of reality.


Nancy, you are bringing up stale arguments that have been answered many times in the past; however, for your benefit, I’ll reiterate the answers for you – 1) What do I have that is so important? In a nutshell, my life and my physical well-being, and those of my loved ones (and conceivably of other innocents around me). This issue has been addressed by another poster here so I won’t elaborate, except for this point. You may wonder if I think my property is worth someone’s life. I think it depends on the circumstances, but if someone threatens to take… Read more »

Don Bailey

@Nancy, Please, you are using the same tired old anti-gun talking points that have been around for thirty years. Try to look at the argument from all perspectives. For those of us who go to the range and shoot a lot, you will hear many different perspectives. Some of the best detailed oriented shooters are women who started shooting a handgun, did so for self defense when they found that a restraining order would not work for them. Oddly enough, shooting a handgun can become a sport for those who once feared any kind of firearm. For myself, I prefer… Read more »


I would think that a lot depends on how one defines or spells “liberal”, “conservative” and “progressive”, “progressive” indicating forward movement, but to where being oh so interestingly unstated. For those old enough to remember, or who have read a bit, the late P.O. Ackley once noted re progress, that while it indicated movement, it might not be movement in the direction of improvement. Seems to still apply.


As long as we’re talking about definitions:
Consider – If “Pro” is the opposite of “Con” (as in “to argue the Pros and Cons of something”), and “Progress” means to go forward, then “Congress” must mean….


Old Shooter:



And again, movement towards something that may or may not been a good thing. If progress has moved you in a direction you find you shouldn’t have gone, congress ( by your definition) would be a good thing



Looks like you just do not understand the vagaries, the “flexibility” inherent in “Progressive Think”.



Don’t let the NRA get involved in this case if you want to save any Constitutional rights. Attorney Alan Gura & SAF took Otis McDonald to the Supreme Court, then NRA hired former Solicitor General Paul Clement to barge into the McDonald v. Chicago case at the last minute and steal 10 minutes from Gura’s 30 minute oral argument. NRA did NOTHING to advance concealed carry in Illinois for 40 years, but having Chicago black man Otis McDonald as lead plaintiff made NRA look trendy. After Gura & SAF won a smashing victory for the 2nd Amendment, NRA lobbyist for… Read more »

Hipshot Percussion

We have no Duty To Inform (DTI) in Illinois.


At one point in time, The NRA was a big pusher of Gun Control, an attitude seemingly changed, though who knows after having done god knows how much damage.

Wild Bill

@Albbac2, No, that is not correct. The NRA took no political positions at all until the Institute for Legislative Action was formed. And the NRA’s Institute for Legislative Action has, from day one, been 100 percent Second Amendment Civil Rights supportive. The myth that the NRA supported gun control began with the liberal socialist spread rumor that the NRA supported the GCA of 1968, which is quite untrue. The liberal socialists progressives continue to spread the myth in order to splinter the solidarity of all gun owners and diminish the power of the most effective lobby group that has ever… Read more »


Wild Bill: History, as I understand it, supports my comments concerning the past and the history of the NRA. Might I respectfully suggest that you look into the past activities, the lack of activities too, of the organization. We can have a further exchange of views then,if you like. I note that the ILA has shown the willingness to fight, something that the NRA seems to have lacked in the past, especially respecting the comments and attitudes of those who stood high in the organization, who preached “gentlemanly” behavior toward those obviously intent in cutting the throats of gun owners.… Read more »


Remember back some years, when The NRA was rather big on Gun Control. Who knows how much damage their ill advised stance did, damage that haunts us still.


Thinking back to NRA “mistakes” It was in 1967, just prior to my bidding so long to NYC, where I had grown up, a representative from the NRA during discussion of a proposed city ordinance that I testified against but which was enacted into law, this NRA representative spoke of the “need” for gun owners to be “gentlemanly”, which amounted to our not speaking harshly to or of our anti gun “friends”. I told this gentleman that he was being ridiculous, as he seemed to advocate lying down with rattle snakes, then wondering how/why he had come to be bitten.… Read more »