Being convicted of a felony gets you banned by Federal law from having a gun. So does conviction on a misdemeanor crime of domestic violence. But how violent must the physical contact be to qualify as "domestic violence"?
This morning, in U.S. v. Castleman, a unanimous Supreme Court answered.
Very little violence is enough to do it.Battery, which can involve as little as "offensive touching," is sufficient.
The decision is a victory for women's groups, the Brady Center, Mayors Against Guns, the Major Cities Police Chiefs Association, a multitude of state coalitions against domestic violence, the Children's Defense Fund and the American Academy of Pediatrics. Among others.
More, below the little orange tickle...
|Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted on as legal advice.
The Gun Control Act, 18 U.S.Code Sec. 922(g)(9), makes it unlawful for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence" to ship, transport, receive or possess firearms.Castleman argued that his conviction was based on a plea of guilty for "intentionally or knowingly causing bodily injury" but he insisted that did not involve violent force. Therefore, he argued that it was not the kind of "violence" that should prohibit him from having a gun. (The Court noted Castleman was under investigation for buying guns from dealers and reselling them on the black market.)
Sec. 921(a)(33) requires "as an element [of domestic violence], the use or attempted use of physical force, or the threatened use of a deadly weapon, ..."
Both lower courts agreed with Castleman. The trial court dismissed the charges because physical force was not involved in his earlier conviction. The Sixth Circuit Court of Appeals upheld it, holding that the “physical force” element required “strong and violent” force. Federal Circuits being split on the question, SCOTUS granted the government's petition to review the case.
Justice Sotomayor (writing for Justices Roberts, Kennedy, Ginsburg, Breyer and Kagan) declared "the use of physical force" included offensive touching, which the law considers enough to constitute battery. She listed several reasons, including:
First, because perpetrators of domestic violence are routinely prosecuted under generally applicable assault or battery laws [citation omitted], it makes sense for Congress to have classified as a “misdemeanor crime of domestic violence” the type of conduct that supports a common-law battery conviction. ...Pundits might suggest that this is the kind of case where female justices would be more sympthetic, and might be more prone to an inclusive interpretation of what constitutes domestic violence. In this case, however, Justices Scalia and Alito (with Thomas) agreed with the decision, if not all the reasoning for it.
Second, whereas the word “violent” or “violence” standing alone “connotes a substantial degree of force,” that is not true of “domestic violence.” "Domestic violence" is not merely a type of “violence”; it is a term of art encompassing acts that one might not characterize as “violent” in a nondomestic context. ... Indeed, “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting.” DOJ, P. Tjaden & N. Thoennes, Extent, Nature and Consequences of Intimate Partner Violence 11 (2000).
Gun advocates on both sides weighed in with amicus (friend of the Court) briefs. Predictably, the Gun Owners Foundation and other gun rights groups warned of Second Amendment implications (as did counsel for Castleman in a short reference):
If Section 921(a)(33)(A)(ii) were to be interpreted as the government has argued, it would place the constitutionality of Section 922(g)(9) in serious doubt. ...Nope! Justice Sotomayor gave the concern short shrift:
There is no doubt that a serious question of constitutionality would be raised by denial of access to a firearm for defense of hearth and home to a person whose misdemeanor conviction — even one arising out of a domestic conflict — was based solely on evidence of a nonviolent act, such as an offensive touch, spitting, or a slight push or shove with no injury.
But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman’s cursory nod to constitutional avoidance concerns.
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