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Justice Thomas ends long silence with questions on gun rights

| Monday, Feb. 29, 2016, 8:27 p.m.
Supreme Court Associate Justice Clarence Thomas has made it a rule to remain silent during oral arguments, believing that the hour-long sessions are an opportunity for opposing lawyers to make their case.
AFP/Getty Images
Supreme Court Associate Justice Clarence Thomas has made it a rule to remain silent during oral arguments, believing that the hour-long sessions are an opportunity for opposing lawyers to make their case.

WASHINGTON — Justice Clarence Thomas broke a 10-year silence Monday at the Supreme Court, just two weeks after the death of his conservative colleague Antonin Scalia left a noticeable void during oral arguments.

Thomas piped up for the first time since Feb. 22, 2006 — other than a brief quip uttered three years ago — with an extensive series of questions about Second Amendment gun rights.

The case involved two Maine men barred from owning firearms under a federal law because of prior state domestic violence convictions. The men argued that those convictions did not merit the lifetime ban, and Thomas apparently agreed.

“This is a misdemeanor violation. It suspends a constitutional right,” Thomas told Ilana Eisenstein, the assistant solicitor general arguing the federal government's case. “Can you give me another area where a misdemeanor violation suspends a constitutional right?”

That prompted a give-and-take in which Thomas spoke 11 times and asked nine questions. He noted that gun possession is a constitutional right “at least as of now,” a reference to a regular flow of state and municipal laws regulating that Second Amendment right. The Supreme Court's landmark ruling in 2008 upholding the use of guns at home for self-defense was written by Scalia.

The federal law was intended to deny guns to people convicted of violent acts against family members, based in part on research showing they are more likely to use guns domestically in the future.

When Eisenstein likened the punishment to suspending First Amendment rights for compelling reasons, Thomas asked if a publisher who was reckless in printing indecent depictions of children could be prohibited from ever publishing again. No, he was told.

Thomas' dedication to silence sets him apart from colleagues. Led in the past by Scalia, the other justices pounce on the lawyers and seldom let up.

Early in 2013, Thomas spoke for the first time in seven years, but he didn't ask a question. It was just a quick quip during an argument over a defendant's right to a speedy trial.

That discussion focused on the adequacy of the lawyers provided by the state of Louisiana to a defendant later convicted of second-degree murder. Thomas whispered something to Scalia, seated on his left, who then pointed out that one member of the legal team graduated from Yale, another from Harvard.

“Well there, see, he did not provide good counsel,” Thomas said, as if to denigrate a Harvard Law School degree compared to his own degree from Yale.

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