Supreme Court upholds federal law banning gun possession by those convicted of domestic violence

by Laurence Lewis With this Supreme Court majority, one doesn’t expect much, but this unanimous ruling looks huge:

The Supreme Court ruled Wednesday that a federal law intended to keep guns away from domestic violence offenders can apply even if their crime was nothing more than “offensive touching.”The decision was a victory for gun control advocates and groups that work to protect battered spouses and children, and a defeat for gun rights organizations who argued the federal law goes too far. For the justices, it came down to the proper definition of “physical force” — one that a majority of them decided did not have to be violent, or even directly applied to the victim by the abuser. Routine battery convictions, the court said, are sufficient to trigger the gun ban.

Domestic_violence_gunsThe ruling overturned a judgment by the United States Court of Appeals for the Sixth Circuit, in a case where a Tennessee man was charged with gun offenses seven years after having pleaded guilty to having injured the mother of his child. His appeal contended that the gun charges should be dismissed, because his original offense did not involve physical force. The ruling can be found here (pdf).

Justice Antonin Scalia concurred with the majority, but wrote a separate opinion, objecting to the extent of the ban.

For example, amici’s definitions describe as “domestic violence” acts that “humiliate, isolate, frighten, . . . [and] blame . . . someone”; “acts of omission”; “excessive monitoring of a woman’s behavior, repeated accusations of infidelity, and controlling with whom she has contact.”

Writing for the majority was Justice Sonia Sotomayor:

JUSTICE SCALIA’s concurrence discounts our reference to social-science definitions of “domestic violence,” including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 8–11. It is important to keep in mind, however, that the operative phrase we are construing is not “domestic violence”; it is “physical force.” §921(a)(33)(A). “Physical force” has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a “misdemeanor crime of domestic violence.” 6A third reason for distinguishing Johnson’s definition of “physical force” is that unlike in Johnson—where a determination that the defendant’s crime was a “violent felony” would have classified him as an “armed career criminal”—the statute here groups those convicted of “misdemeanor crimes of domestic violence” with others whose conduct does not warrant such a designation. Section 922(g) bars gun possession by anyone “addicted to any controlled substance,” §922(g)(3); by most people who have “been admitted to the United States under a nonimmigrant visa,” §922(g)(5)(B); by anyone who has renounced United States citizenship, §922(g)(7); and by anyone subject to a domestic restraining order, §922(g)(8). Whereas we have hesitated (as in Johnson) to apply the Armed Career Criminal Act to “crimes which, though dangerous, are not typically committed by those whom one normally labels ‘armed career criminals,’ ” Begay v. United States, 553 U. S. 137, 146 (2008), we see no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with the others whom §922(g) disqualifies from gun ownership. An additional reason to read the statute as we do is that a contrary reading would have rendered §922(g)(9) inoperative in many States at the time of its enactment. The “assault or battery laws” under which “domestic abusers were . . . routinely prosecuted” when Congress enacted §922(g)(9), and under which many are still prosecuted today, Hayes, 555 U. S., at 427, fall generally into two categories: those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter. See Brief for United States 36–38. Whether or not the causation of bodily injury necessarily entails violent force—a question we do not reach—mere offensive touching does not. See Johnson, 559 U. S., at 139–140. So if offensive touching did not constitute “force” under §921(a)(33)(A), then §922(g)(9) would have been ineffectual in at least 10 States—home to nearly thirty percent of the Nation’s population7—at the time of its enactment. See post, at 6, and n. 5 (SCALIA, J., concurring in part and concurring in judgment) (acknowledging that §922(g)(9) would have been inapplicable in California and nine other States if it did not encompass offensive touching); App. to Brief for United States 10a–16a (listing statutes prohibiting both offensive touching and the causation of bodily injury, only some of which are divisible); cf. Hayes, 555 U. S., at 427 (rejecting an interpretation under which“§922(g)(9) would have been ‘a dead letter’ in some two thirds of the States from the very moment of its enactment”). In sum, Johnson requires that we attribute the common-law meaning of “force” to §921(a)(33)(A)’s definition of a “misdemeanor crime of domestic violence” as an offense that “has, as an element, the use or attempted use of physical force.” We therefore hold that the requirement of “physical force” is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction. 6 The concurrence’s reliance on definitions of “domestic violence” in other statutory provisions, see post, at 8, and n. 7, is similarly unpersuasive. These other provisions show that when Congress wished to define “domestic violence” as a type of “violence” simpliciter, it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to. See, e.g., Custis v. United States, 511 U. S. 485, 492 (1994). This also answers the concurrence’s suggestion, post, at 10, that our holding will somehow make it difficult for Congress to define “domestic violence”—where it wants to—as requiring violent force. 7 See U. S. Census Bureau, Time Series of Intercensal State Population Estimates: April 1, 1990 to April 1, 2000, online at… (estimating state and national populations as of July 1, 1996).

The bottom line is that those who have suffered domestic abuse now can be better protected from their abusers, those convicted of domestic abuse can be legally barred from owning firearms, and the overall cause of gun safety has won a rare but substantive victory.   Reprinted with permission from The Daily Kos