your argument first first this morning case fourteen one zero one five four one scene and armstrong versus united states was real mr chief justice and may it please the court there are three reasons to exclude misdemeanors from the phrase use of physical force as a curse in one twenty one a thirty three the first is that it's consistent with the definition of use that this court has implemented in other cases second it is consistent with the common law definition of battery and third it is consistent with the intentionality inherent in domestic violence but it's inconsistent with the treatment of bodily injury acts qualify equally wife shouldn't the same state of mind attach to the same state of mind should attach to each and that is why intentionality is the state of mind that under the common law cannot attach to each because intentional battery covered by both the offense of physical contact as well as the physical injury were as recklessness as the act of causing the injury but i understood common law battery to be the intentional act that causes the injury i e if her husband threw a bottle at a wife doesn't intend to hit her but the bottle smashed against the wall and the glass and beds itself in her face under the common law that would have been a battery because the act the intentional act was to throw a bott the case how do you win that's only on injury cases and so you don't have that same confirmation or that same organisation of the law with respect to the offense of physical contact and so my clients were convicted of offense of physical contact under under the categorical approach and so at that point you can't say that they were convicted of anything that caused physical injury but the point is that the contact was and was intended some contact had to have occurred correct lashon is whether there was an act that caused that contact we guard this so whether it was intentional or reckless the problem under the common law is that not all touches were considered to be illegal and so that is why in johnson this court stated the common law is being the intentional application of unlawful we were about common law battery as it apply to definition as it apply in a domestic setting sun talking only about a domestic setting with a this is this is serious but the problem is is that the government's formulation of any reckless conduct satisfying use of physical force doesn't apply doesn't necessarily have to apply to both statutorily it does apply to both so if someone recklessly touches another person and that is offensive that's a battery under my under law yes your honor and the government cites a case exactly for that purpose proposition and that's the gun to me her case and what happened in that case i it was whether the defendant got a  instruction on the simple battery rather than the sexual offense of contact and so that the court reversed it because it said that it was a proper instruction i mean what were the facts what what did this person do that was  involved the right course touching he went to wake in the his stepdaughter i believe who was asleep on the couch reached underneath the blanket and to shake her awake and touched her naked body well that's that seems like the recklessness there goes to the the offensive nature of the touching not to the touching itself no i went upstairs the act of touching so he he went to shake  intend to touch or it was there can be recklessness as to result or recklessness as to circumstance and so that is an example of recklessness as to circumstance by reaching underneath if he had touched her on top of clothing it would not have been the same offense that could have been charged and so it was the fact that he touched her naked body and could not say i don't really understand what the answer but he didn't intend to touch her at all that well he did not intend to touch her but that is what that's what i'm saying there are two different things did the perp does the person intends to touch does the person intend to touch in an offensive way law it is the intent to have unlawful contact and so that is why not all touches qualify which is why you can't just have an intent to touch you also have to have an intent to touch unlawfully you know what is it that indicates that the federal statute cracks the common law the federal statute gives its own definition your honor the federal statute is the  of physical force and so it is only because of castleman having adopted the common law for purposes of force but your honor is absolutely correct that we are not construing the common law here we are construing the phrase use of physical force and the problem with the government's case is that that use of physical force can occur in reckless driving context if i am driving a car and i have a family member that qualifies under nine twenty to one twenty one a thirty three in with me and i get into an accident due to reckless conduct that would qualify as a predicate under this statute according to the government's construction is really kind of stand what you said you said you're relying primarily then not on the common law history but on the the  just the language use of physical force and what that means the ordinary meaning of those words is that correct the court has to deal with the ordinary meaning of those words the court can take from the common law it can take from many places but the ordinary meaning of use is to carry out an action or purpose by means of in castleman itself why isn't any of these examples that people give about  the the the reckless behavior why couldn't that be a use of force i mean just to sort of why you are said throw in the plate against a wall you say well i have a better example if it's driving a car really fast in a way that will endanger all the inhabitants but of course we've said a number of times i mean we said it most recently and in the psychs case that a car is as an instrument of force when used recklessly in that way so why aren't all of these kinds of examples consistent with the ordinary meaning of use of force there's a substantive difference though between driving recklessly and not intending to harm the person that is with you in the car and throwing an object at a person and so really the example of throwing an object at a person is that intentional use of force against that other person that defendant can testify all day and all night that i didn't until then worse you're adding language to the statute now because you said against another person and that is indeed the language in lee a cow but we said we're not going to decide the question here which is just the phrase is use of physical force not against another person just the phrase use of physical force and tell me i mean i guess your car example doesn't move me very much so see if you can give me an example which would be  reckless behavior under a battery statute but which you think would not involve the use of force i had a client once who pled guilty to a misdemeanor where he was actually running away from the guy who was trying to beat him up and he closed the door very forcefully behind him and cut the guy's finger in the in the door where you just said if you close the door very forcefully behind him he did the that's the use of physical force it was the use of physical force but what he explained is that i closed the door the door hit the guy i didn't mean to hit the guy i knew he was behind me i know and that's why it's reckless and not knowing or whatever the other term is but but you're still using physical force and that's the that's the term that that has to be interpreted here is the use of physical force but the court has door and so he was using force to close the door but he wasn't using force to hurt the other guy well quite right but the language i feel like i'm repeating myself a little so i just tried one more time the language is just the use of force and what we're trying to decide is whether that includes use of force that indeed it is carried out without an intent to harm but is carried out with an understanding that there is a risk of harm that's what recklessness is and and you know doing something like driving a car two hundred miles an hour or throwing a plate or slamming a door when somebody is hand is in the vicinity all of those things and volved the requisite risk and all of those things involve the use of physical force but not in the sense that the court has construed to use in the past and so they have for instance in smith which was decided in one thousand nine hundred three that case was where it was to carry out an action or purpose by means of and so it's not to carry out an action to close a door by means of hurting somebody and so there is this disconnect and that is inherent because in the in recklessness because what you're doing is that you aren't looking to hurt it there may be a risk but that's not your purpose and so the whole difference between purposeful knowing behavior as opposed to reckless behavior  is that you have a purpose that is pointed someplace else with the risk that there might be a collateral consequence rather than actually seeking to accomplish that collateral consequences you have to look at this  the domestic violence context because the definition use of force is put in terms of a misdemeanor under federal or state tribal law means that so it means to domestic violence and this is the prototypical in many of these domestic violence cases where much of the violence employed is not direct and once not hitting something there's a lot of that but there's an awful lot of the examples i raise of reckless conduct that leads to violence either from drunkenness or from other conditions you're using the use of force has since been defined in other areas why does it fit into th violence case because domestic violence according to the castleman opinion was violence or non violent conduct that's offensive and is  it's use a physical force whether it is touching or not it is something that is intended to control one's partner and so if you have to use force to control one's perper or you do something that is offensive to control one's partner it is still the idea that you are implementing any level of force in order to achieve and and and that is and is the control inherent in domestic violence the government tells us that this is having consequences right on this that is that many domestic violence situations would not be a prosecution under i don't is because as was noted in footnote eight courts have generally construed use of physical force to exclude reckless conduct and so there are for instance in castleman itself it falls in the sixth circuit the sixth circuit and portela held use of physical force excludes reckless conduct it was not construing one twenty two g but i would note that the state prosecutor in castleman had a statute much like that in me that just allowed knowing purposeful or reckless conduct and rather than charging all of them that prosecutor restricted it to knowing purposeful conduct but do you think that prosecutors when they are state prosecutors when they're charging these domestic violence offenses are going to be looking ahead to the consequences of the particular charge for federal firearms laws yes or no that's realistic yes your honor and that is because there's a large part of the budget for domestic violence within the federal government that goes towards training and joint task force so that there is an awareness on the part of state prosecutors exactly for this purpose and let me ask you this which is somewhat related so congress passes the statute and they  agree that a that the offensive battery falls within that definition am i right the offense of contact battery gets your honor all right what reason is there to think that when congress did this they wanted common law battery only they didn't want battery as it is defined in general by a great many states because in the past at that time in my mind is it not correct that  that time a majority of the states had battery offenses that reached reckless conduct you are correct that many states did but the problem with that scenario as to what congress intended is that it did not adopt a battery as the definition of a misdemeanor crime of domestic violence for purposes of what i understand your stamp and i thought you would agree that battery in some sense falls within the definition falls within the category of a misdemeanor crime of domestic violence i have to because of the castleman so ruled yeah ok well if you agree with that then you is that they just all they think about across the street is the common law so battery common law battery they don't care what the actual statutes are around the country they are just interested and the offense of common law battery your honor and is that realistic your honor that is not my position my position is that common law battery offense of physical contact could only be accomplished through intentional conduct the term use had been construed already by this court prior to one thousand nine hundred six as being an affirmative purposeful conduct that you're taking an item and making it your instrument that you're accomplishing something with that in this case it would have been force and so then if you were kompany that with the idea of domestic violence as the intentional controlling of a domestic partner all of those ideas each one of them has intention its core and so that when congress used this phrase as an element not as a generic crime of battery but as an element of any misdemeanor acknowledging that ruckus comedy would be sufficient when it is just one physical injury as opposed to offensive touching as i'm all is that right or not under the common law in about the mid eighteen hundreds there was a subset of batteries that did adopt the negligent not of negligence but a recklessness factor but that is not the definition given in johnson and it is not that  injury does triggered this statute is the question i opened with if the if the conduct is covered whether it is touching or b because it would be inconsistent with the idea that when you adopt a common law term that you adopt all of the soil that went with the common water common law term the common law term is the common law battery the level of force involved in a common law battery as being the level of force for purposes of the statute but we wouldn't think that the common law has some great definition of the word you would  here which is why that normal usage for use of physical force is the intent also intentional and yet i'm just saying i mean i hear you can say as basically making an ordinary meaning argument which i think is a good thing because all the briefing on both sides of this has been talking about the common law that's coming out of your years and it's not clear to me why the common law makes any difference at all here i mean you know congress was operating against a backdrop it was question is what was congress doing congress we sent in castleman wanted to basically capture the set of battery statues in which which were used for people engaged in domestic violence almost all of those statutes use recklessness within them why isn't that the proper place to look rather than the common law because congress used a narrower definition than many battery statutes and so it couldn't have wholesale been adopting those battery way and all of the parts you have use of physical force which this court had defined and as as having been made the users instrument which is that intentionality part prior to congress adopting this it had consisted of the use of physical force in other statutes where recklessness was excluded and it's it did not adopt again it doesn't say battery anywhere in the statute and so saying that the adopted battery may be a way of trying to think about it but it's not what they wrote and they also now wrote the idea of what does constitute a inappropriate misdemeanor because at the end as in castleman the court recognize that not everything under the tennessee statute would qualify because there were threats but not threats of a deadly weapon all of the the use of physical force in the attempt attempts or specific intent crimes and so that's also an intentional crime threats are usually very intentional and so can you please go back to the question justice kagan asked you and you seem to be shaking somebody because i don't understand how shaking someone doesn't constitute the use of physical force and may not be great force but it's it's touching what other example do you have of a reckless act that wouldn't involve the use of formulation were adopted and i came up to somebody who i thought was my husband and i patted him on the back and say hi honey and he turns around and it's like oh my gosh that isn't him i had wrecked i touched him i intended to touch him i was mistaken as to who it was and so that person could take offense that could be a re use of force to constitute such it could be by placing it could be by taking a pen out of somebodies hands so what difference does it make whether it's intentional or we're giving examples that are not domestic violence examples but it has caused a sufficiently a sense of touching to constitute a crime so that's going to be prosecuted and it could be ok you have to be arrested you go away and you go through the process you plead guilty because you get out and you need to go to work the next day those are not the types of scenarios that congress had in doesn't that that stranger is not related to you in the way that the statute liars that is true there are other reasons though where  interactions between people who are related may not be that the touching may occur but it may either not be wanting to be offensive such as just wanting to touch somebody to wake them up instead of wanting to offend them and so that's the difference i would like to reserve the rest of my time for rebuttal please thank you counsel similar in terms of degree to offense of touching in fact that was what was that issue a custom in itself it was the bodily injury prone of the tennessee statute not the offense of touching and in that case the bottle injury could be committed in a way that involved only slight injury and yet this court refused to distinguish by degree of force battery is that qualifies section one twenty two to nine predicates keep in mind that states overwhelmingly define battery as only as to the resulting injury petitioners role which would limit misdemeanor crimes of domestic violence to intentional conduct would require a prosecutor in those jurisdictions to prove in the underlying offense not only that the contact in the push to hit the grab was intentional but that prosecutor would also have to show that the abuser intended the resulting injury in order to prove the factory offense under the vast majority of state and under federal law what's so bad about that i mean given her door example for example why should the accidental or perhaps she would say she he or she knew th involuntary or negligent or even an accidental act reckless conduct is voluntary conduct its conduct where an individual chooses to act in conscious disregard of a substantial and known risk of harm so if the if the person in your example mr chief justice slammed the door not realizing the fingers were there that's not going to be reckless conduct at all that would be negligence at best and that all i mean you don't know you're running away what if it's a close call you you you don't pause to think well gosh maybe he's close enough she's close enough that this will you know hurt his fingers or something i mean is that recklessness i think to the degree to which the individual  consciously disregards the substantial you don't want to turn around and see how close the person chasing you is if you slam the door oh gosh that's going to be you know pinch the fingers or something but i think that the what feels wrong about the hypothetical is an individual takes intentional action to make contact with their loved one and does so in a way that is reckless as to whether for example if there's a push reckless as to whether his wife simply stumbles backwards his or her spouse under those circumstances i don't think that's problematic for two reasons one as i think it's an extremely narrow category of offenses and petitioners pointed to no actual examples well the main s there i agree with your honor that in theory that type of offense could constitute a battery but to the degree to which that's prosecuted where in the real world that's prosecutor whether the domestic family member is the sole victim and that that is only a misdemeanor that there is not sufficiently severe injury or other factors that rise to the level of a felony offense which would be disqualifying under its own right i don't think that that level of over  i'm but my point is that the type of scenario that that is positive where both there would be a reckless sort of a generally reckless conduct that the victim happens to be by by chance the family members opposed to another member of the public and thus qualifying as a section one twenty two shey nine predicate is a narrow indeed and the converse of that is striking while the while the over breath of the hypothetical but it is narrow but i don't think this court should be concerned about that because what congress was worried about wasn't an overbroad of these prosecutions against family members instead they went to a real under reporting under prosecution and the low conviction rates of these offenses this was the problem that congress addressed in the whole reason why they extended the firearms ban from well on which of our which of our cases say that you don't have to worry if the categor can cause real problems if there is any degree of overt breath and the statute but that's exactly why i'm interpret in section nine twenty two g nine and what congress purpose was is extremely important here because to the extent to which petitioners overbroad i'm not sure overbred has the right legal term so you think it's an appropriate defense under prosecution here that the type of conduct i was charged with is really not what congress had in mind yes it fits under the terms that this statute does cover it but most unlikely that a prosecutor to bring said to case i think that would be started to say about it that's correct or not i think it's unlikely that those prosecutions would be brought in the state of fense on those under those circumstances and that there's no reason to drastically constrain the interpretation of section nine twenty two g not we have precedent from this court things ok we can trust the prosecutors to do the right thing and you cite me a case that says that your honor i do not i do not represent that but what i do suggest is what we're looking at here is not what prosecutors might do under the in the state and the underlying state prosecution but what congress intended to cover under section nine twenty two to nine so in order to avoid a hypothetical scenario where a family member may be injured in a non domestic context the result of requiring intention divided and both judges will very strong opinions and we also have eighteen u s c section sixteen where the crime of violence doesn't include reckless or reckless state of mind so putting those together the other statute for us this was a split decision why doesn't  of offenses that congress intended to cover by the statute which were generally applicable sought in battery statutes and the rule that petitioner suggest would exclude all of those offenses and would frustrate that have tried to argue that battery either a common law or contemporary practice that there were some but foreign meant of an intent to do harm and the overwhelming weight and universal weight of authority points the opposite direction even the another way to look at this side of the common law is the way that taylor examined the statute of burglary under the aca fence which is true rather than turning just to the common law is to view this as covering generic battery and when looked at that way under the contemporary practice the model penal code and the uniform opinion of the courts of appeals and commentators all have concluded that battery was not limited to an a purpose to cause a resultin harm but included conduct that could be reckless and that these petitioners hypotheticals petitioner struggles to even conceive of a hypothetical example of where there is a reckless battery that would against a family member that would not constitute a misdemeanor crime of domestic violence the converse is that congress and not that section one thousand nine twenty two to nine to address a vital vital public safety problem it identify those who've been convicted of murdering their family members as posing a dramatically increased risk of perpetrating future gun violence against their family this court should continue to interpret section nine twenty two g not in light of a spends a constitutional right can you give me another area where a misdemeanor violation suspends a constitutional right the you're saying that recklessness is sufficient to trigger a violation misdemeanor violation of domestic cut conduct that results in a lifetime ban on possession of a gun which at least as of now is still a constitutional right your honor today i think of another constitutional right that can be limitation of a right to free speech or even free association and contracts where there is a compelling interest and and risks associated in some cases less than a compelling interest under intermediate scrutiny this is a how long is permanent your honor it's not necessarily permanent as to the individual but it may be permanent as to a particular harm and here congress decided to intervene at the first instance that individuals convicted of  family members because it it relied on substantial and well documented evidence that those individuals pose a long time and substantially so in each of these cases had any of the of the weapon it is a suspension that is actually indirectly related or actually unrelated it's just a family members involved in a misdemeanor violation therefore a constitutional right because what they showed is that individuals who have previously been bought or their spouses pose up to a six fold greater risk of killing by gun their family member well let's let's say that and that triggers a violation of say a hypothetical law against the use of children in these ads and let's say it's a misdemeanor violation  and i think it would be perhaps a better case except that the evidence that congress relied on and the courts below that of a just a second amendment concerns that your honor is highlighting have even gone into a more robust analysis of the  evidence that ties initial crimes of battery to future gun violence that evidence is extremely strong and congress recognized that this was a recurring escalating offense petitioner's are good examples of this while they didn't reach thankfully the point where they were able to reach for a firearm and were prohibited from having a firearm under federal law they have each been convicted multiple times of domestic violence offenses and possess the firearms in close proximity so these aren't individuals who had long ago convictions and are suffering from that ban congress also contemplated exactly the life time nature of the ban that your honor suggested and left it in state's hands to resolve that by allowing states to exp or pardon convictions in cases where an individual either petitions to do so or in some states as a matter of course so so i understand your honor is concerned that this is a potential infringement of individual second amendment rights but i believe that congress has identified a compelling purpose and has found a reasonable means of achieving that purpose and i suppose want to answer to the partial answer that justice thomas question is showing a violation and the sexual offenders have to register before they can travel in interstate commerce but that's not a prevention from traveling at all she said she's restricting well your honor it's a prevention and requiring prophylactic measures in order the focus on the cases in which there is a misdemeanor battery conducted with out an intentional or knowing state of mind this in fact triggers this is the question justice thomas asked if this in fact triggers a lifetime ban on the use of a gun then do we not have to decide something we haven't decided and i think would be a major question what constitutes a reasonable regulation oh gods under the second amendment given heller and the other cases with which i disagree but the point is she's raised a question and she wants us to answer that question is this a reasonable regulation given that you just heard the argument in part given the distance and so forth so what am i supposed to say in your opinion in respect to the rather important question your honor two answers to that first as this committed stopping at the first point your argument on the first point is the she did not raise the constitutional question she said in order to avoid a constitutional question we should decide it in the us such and such a way so one answer would be well maybe so we aren't facing the constitutional question we are simply facing the question of what congress intended and if this does raise a constitutional question so be it and then there will in  future case come up that question so we're our point is we don't have to decide that here that's correct your honor congress did not use the word battery in one twenty one eight thirty three and so the question is whether under the rule of lenity the court can then say battery is the standard that we are going to use in order to construe this and it's a push me pull you because it is the use of force but that doesn't have to be a prior battery conviction it could be any misdemeanor conviction that has a state of recklessness for the state of mind and results in any any involvement of a domestic partner and i think that there is enough play within the statutory statute itself as well as the extent of the common law so to say that that is a reason for applying there is also the underlying constitutional questions and this court as in being able to abrogate a constitutional right indefinitely based on reckless conduct i believe also present extreme due process concerns and for those reasons i believe that the court should conclude that under these circumstances it is best to avoid that question and to construe the statute the way that is consistent with the words thank you thank you counsel the case is submitted