Voisine v. United States

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
VOISINE ET AL. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 14–10154. Argued February 29, 2016—Decided June 27, 2016
In an effort to “close [a] dangerous loophole” in the gun control laws,
United States v. Castleman, 572 U. S. ___, ___, Congress extended the
federal prohibition on firearms possession by convicted felons to per-
sons convicted of a “misdemeanor crime of domestic violence,” 18
U.S. C. §922(g)(9). Section 921(a)(33)(A) defines that phrase to in-
clude a misdemeanor under federal, state, or tribal law, committed
against a domestic relation that necessarily involves the “use . . . of
physical force.” In Castleman, this Court held that a knowing or in-
tentional assault qualifies as such a crime, but left open whether the
same was true of a reckless assault.
Petitioner Stephen Voisine pleaded guilty to assaulting his girl-
friend in violation of §207 of the Maine Criminal Code, which makes
it a misdemeanor to “intentionally, knowingly or recklessly cause[ ]
bodily injury” to another. When law enforcement officials later inves-
tigated Voisine for killing a bald eagle, they learned that he owned a
rifle. After a background check turned up Voisine’s prior conviction
under §207, the Government charged him with violating §922(g)(9).
Petitioner William Armstrong pleaded guilty to assaulting his wife in
violation of a Maine domestic violence law making it a misdemeanor
to commit an assault prohibited by §207 against a family or house-
hold member. While searching Armstrong’s home as part of a narcot-
ics investigation a few years later, law enforcement officers discov-
ered six guns and a large quantity of ammunition. Armstrong was
also charged under §922(g)(9). Both men argued that they were not
subject to §922(g)(9)’s prohibition because their prior convictions
could have been based on reckless, rather than knowing or intention-
al, conduct and thus did not quality as misdemeanor crimes of do-
mestic violence. The District Court rejected those claims, and each
2 VOISINE v. UNITED STATES
Syllabus
petitioner pleaded guilty. The First Circuit affirmed, holding that
“an offense with a mens rea of recklessness may qualify as a ‘misde-
meanor crime of violence’ under §922(g)(9).” Voisine and Armstrong
filed a joint petition for certiorari, and their case was remanded for
further consideration in light of Castleman. The First Circuit again
upheld the convictions on the same ground.
Held: A reckless domestic assault qualifies as a “misdemeanor crime of
domestic violence” under §922(g)(9). Pp. 4–12.
(a) That conclusion follows from the statutory text. Nothing in the
phrase “use. . . of physical force” indicates that §922(g)(9) distin-
guishes between domestic assaults committed knowingly or inten-
tionally and those committed recklessly. Dictionaries consistently
define the word “use” to mean the “act of employing” something. Ac-
cordingly, the force involved in a qualifying assault must be volition-
al; an involuntary motion, even a powerful one, is not naturally de-
scribed as an active employment of force. See Castleman, 572 U. S.,
at ___. But nothing about the definition of “use” demands that the
person applying force have the purpose or practical certainty that it
will cause harm, as compared with the understanding that it is sub-
stantially likely to do so. Nor does Leocal v. Ashcroft, 543 U.S. 1,
which held that the “use” of force excludes accidents. Reckless con-
duct, which requires the conscious disregard of a known risk, is not
an accident: It involves a deliberate decision to endanger another.
The relevant text thus supports prohibiting petitioners, and others
with similar criminal records, from possessing firearms. Pp. 5–8.
(b) So too does the relevant history. Congress enacted §922(g)(9) in
1996 to bar those domestic abusers convicted of garden-variety as-
sault or battery misdemeanors—just like those convicted of felonies—
from owning guns. Then, as now, a significant majority of jurisdic-
tions—34 States plus the District of Columbia—defined such misde-
meanor offenses to include the reckless infliction of bodily harm. In
targeting those laws, Congress thus must have known it was sweep-
ing in some persons who had engaged in reckless conduct. See, e.g.,
United States v. Bailey, 9 Pet. 238, 256. Indeed, that was part of the
point: to apply the federal firearms restriction to those abusers, along
with all others, covered by the States’ ordinary misdemeanor assault
laws.
Petitioners’ reading risks rendering §922(g)(9) broadly inoperative
in the 35 jurisdictions with assault laws extending to recklessness.
Consider Maine’s law, which criminalizes “intentionally, knowingly
or recklessly” injuring another. Assuming that statute defines a sin-
gle crime, petitioners’ view that §921(a)(33)(A) requires at least a
knowing mens rea would mean that no conviction obtained under
that law could qualify as a “misdemeanor crime of domestic violence.”
Cite as: 579 U. S. ____ (2016) 3
Syllabus
Descamps v. United States, 570 U. S. ___, ___. In Castleman, the
Court declined to construe §921(a)(33)(A) so as to render §922(g)(9)
ineffective in 10 States. All the more so here, where petitioners’ view
would jeopardize §922(g)(9)’s force in several times that many.
Pp. 8–11.
778 F.3d 176, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which SOTOMAYOR, J., joined as to Parts I
and II.
Cite as: 579 U. S. ____ (2016) 1
Opinion of the Court
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preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–10154
_________________
STEPHEN L. VOISINE AND WILLIAM E. ARMSTRONG,
III, PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 27, 2016]
JUSTICE KAGAN delivered the opinion of the Court.
Federal law prohibits any person convicted of a “misde-
meanor crime of domestic violence” from possessing a
firearm. 18 U.S. C. §922(g)(9). That phrase is defined to
include any misdemeanor committed against a domestic
relation that necessarily involves the “use . . . of physical
force.” §921(a)(33)(A). The question presented here is
whether misdemeanor assault convictions for reckless (as
contrasted to knowing or intentional) conduct trigger the
statutory firearms ban. We hold that they do.
I
Congress enacted §922(g)(9) some 20 years ago to “close
[a] dangerous loophole” in the gun control laws. United
States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at
2) (quoting United States v. Hayes, 555 U.S. 415, 426
(2009)). An existing provision already barred convicted
felons from possessing firearms. See §922(g)(1) (1994 ed.).
But many perpetrators of domestic violence are charged
with misdemeanors rather than felonies, notwithstanding
the harmfulness of their conduct. See Castleman, 572
U. S., at ___ (slip op., at 2). And “[f]irearms and domestic
2 VOISINE v. UNITED STATES
Opinion of the Court
strife are a potentially deadly combination.” Hayes, 555
U.S., at 427. Accordingly, Congress added §922(g)(9) to
prohibit any person convicted of a “misdemeanor crime of
domestic violence” from possessing any gun or ammuni-
tion with a connection to interstate commerce. And it
defined that phrase, in §921(a)(33)(A), to include a misde-
meanor under federal, state, or tribal law, committed by a
person with a specified domestic relationship with the
victim, that “has, as an element, the use or attempted use
of physical force.”
Two Terms ago, this Court considered the scope of that
definition in a case involving a conviction for a knowing or
intentional assault. See Castleman, 572 U. S., at ___–___
(slip op., at 4–13). In Castleman, we initially held that the
word “force” in §921(a)(33)(A) bears its common-law mean-
ing, and so is broad enough to include offensive touching.
See id., at ___ (slip op., at 4). We then determined that
“the knowing or intentional application of [such] force is a
‘use’ of force.” Id., at ___ (slip op., at 13). But we expressly
left open whether a reckless assault also qualifies as a
“use” of force—so that a misdemeanor conviction for such
conduct would trigger §922(g)(9)’s firearms ban. See id.,
at ___, n. 8 (slip op., at 11, n. 8). The two cases before us
now raise that issue.
Petitioner Stephen Voisine pleaded guilty in 2004 to
assaulting his girlfriend in violation of §207 of the Maine
Criminal Code, which makes it a misdemeanor to “inten-
tionally, knowingly or recklessly cause[ ] bodily injury or
offensive physical contact to another person.” Me. Rev.
Stat. Ann., Tit. 17–A, §207(1)(A). Several years later,
Voisine again found himself in legal trouble, this time for
killing a bald eagle. See 16 U.S. C. §668(a). While inves-
tigating that crime, law enforcement officers learned that
Voisine owned a rifle. When a background check turned
up his prior misdemeanor conviction, the Government
Cite as: 579 U. S. ____ (2016) 3
Opinion of the Court
charged him with violating 18 U.S. C. §922(g)(9).1
Petitioner William Armstrong pleaded guilty in 2008 to
assaulting his wife in violation of a Maine domestic vio-
lence law making it a misdemeanor to commit an assault
prohibited by §207 (the general statute under which
Voisine was convicted) against a family or household
member. See Me. Rev. Stat. Ann., Tit. 17–A, §207–
A(1)(A). A few years later, law enforcement officers
searched Armstrong’s home as part of a narcotics investi-
gation. They discovered six guns, plus a large quantity of
ammunition. Like Voisine, Armstrong was charged under
§922(g)(9) for unlawfully possessing firearms.
Both men argued that they were not subject to
§922(g)(9)’s prohibition because their prior convictions (as
the Government conceded) could have been based on
reckless, rather than knowing or intentional, conduct.
The District Court rejected those claims. Each petitioner
then entered a guilty plea conditioned on the right to
appeal the District Court’s ruling.
The Court of Appeals for the First Circuit affirmed the
two convictions, holding that “an offense with a mens rea
of recklessness may qualify as a ‘misdemeanor crime of
violence’ under §922(g)(9).” United States v. Armstrong,
706 F.3d 1, 4 (2013); see United States v. Voisine, 495
Fed. Appx. 101, 102 (2013) (per curiam). Voisine and
Armstrong filed a joint petition for certiorari, and shortly
after issuing Castleman, this Court (without opinion)
vacated the First Circuit’s judgments and remanded the
cases for further consideration in light of that decision.
——————
1 In United States v. Hayes, 555 U.S. 415, 418 (2009), this Court held
that a conviction under a general assault statute like §207 (no less than
one under a law targeting only domestic assault) can serve as the
predicate offense for a §922(g)(9) prosecution. When that is so, the
Government must prove in the later, gun possession case that the
perpetrator and the victim of the assault had one of the domestic
relationships specified in §921(a)(33)(A). See id., at 426.
4 VOISINE v. UNITED STATES
Opinion of the Court
See Armstrong v. United States, 572 U. S. ___ (2014). On
remand, the Court of Appeals again upheld the convic-
tions, on the same ground. See 778 F.3d 176, 177 (2015).
We granted certiorari, 577 U. S. ___ (2015), to resolve a
Circuit split over whether a misdemeanor conviction for
recklessly assaulting a domestic relation disqualifies an
individual from possessing a gun under §922(g)(9).2 We
now affirm.
II
The issue before us is whether §922(g)(9) applies to
reckless assaults, as it does to knowing or intentional
ones. To commit an assault recklessly is to take that
action with a certain state of mind (or mens rea)—in the
dominant formulation, to “consciously disregard[ ]” a
substantial risk that the conduct will cause harm to an-
other. ALI, Model Penal Code §2.02(2)(c) (1962); Me. Rev.
Stat. Ann., Tit. 17–A, §35(3) (Supp. 2015) (adopting that
definition); see Farmer v. Brennan, 511 U.S. 825, 836–837
(1994) (noting that a person acts recklessly only when he
disregards a substantial risk of harm “of which he is
aware”). For purposes of comparison, to commit an as-
sault knowingly or intentionally (the latter, to add yet
another adverb, sometimes called “purposefully”) is to act
with another state of mind respecting that act’s conse-
quences—in the first case, to be “aware that [harm] is
practically certain” and, in the second, to have that result
as a “conscious object.” Model Penal Code §§2.02 (2)(a)–
(b); Me. Rev. Stat. Ann., Tit. 17–A, §§35(1)–(2).
Statutory text and background alike lead us to conclude
that a reckless domestic assault qualifies as a “misde-
meanor crime of domestic violence” under §922(g)(9).
——————
2 Compare778 F.3d 176 (CA1 2015) (case below) with United States
v. Nobriga, 474 F.3d 561 (CA9 2006) (per curiam) (holding that a
conviction for a reckless domestic assault does not trigger §922(g)(9)’s
ban).
Cite as: 579 U. S. ____ (2016) 5
Opinion of the Court
Congress defined that phrase to include crimes that neces-
sarily involve the “use . . . of physical force.” §921(a)
(33)(A). Reckless assaults, no less than the knowing
or intentional ones we addressed in Castleman, satisfy
that definition. Further, Congress enacted §922(g)(9) in
order to prohibit domestic abusers convicted under run-of-
the-mill misdemeanor assault and battery laws from
possessing guns. Because fully two-thirds of such state
laws extend to recklessness, construing §922(g)(9) to ex-
clude crimes committed with that state of mind would
substantially undermine the provision’s design.
A
Nothing in the word “use”—which is the only statutory
language either party thinks relevant—indicates that
§922(g)(9) applies exclusively to knowing or intentional
domestic assaults. Recall that under §921(a)(33)(A), an
offense counts as a “misdemeanor crime of domestic vio-
lence” only if it has, as an element, the “use” of force.
Dictionaries consistently define the noun “use” to mean
the “act of employing” something. Webster’s New Interna-
tional Dictionary 2806 (2d ed. 1954) (“[a]ct of employing
anything”); Random House Dictionary of the English
Language 2097 (2d ed. 1987) (“act of employing, using, or
putting into service”); Black’s Law Dictionary 1541 (6th
ed. 1990) (“[a]ct of employing,” “application”).3 On that
common understanding, the force involved in a qualifying
assault must be volitional; an involuntary motion, even a
powerful one, is not naturally described as an active em-
——————
3 In cases stretching back over a century, this Court has followed suit,
although usually discussing the verb form of the word. See, e.g., Bailey
v. United States, 516 U.S. 137, 145 (1995) (to use means “ ‘[t]o convert
to one’s service,’ ‘to employ,’ [or] ‘to avail oneself of’ ”); Smith v. United
States, 508 U.S. 223, 229 (1993) (to use means “ ‘[t]o convert to one’s
service’ or ‘to employ’ ”); Astor v. Merritt, 111 U.S. 202, 213 (1884) (to
use means “to employ [or] to derive service from”).
6 VOISINE v. UNITED STATES
Opinion of the Court
ployment of force. See Castleman, 572 U. S., at ___ (slip
op., at 13) (“[T]he word ‘use’ conveys the idea that the
thing used (here, ‘physical force’) has been made the user’s
instrument” (some internal quotation marks omitted)).
But the word “use” does not demand that the person ap-
plying force have the purpose or practical certainty that it
will cause harm, as compared with the understanding that
it is substantially likely to do so. Or, otherwise said, that
word is indifferent as to whether the actor has the mental
state of intention, knowledge, or recklessness with respect
to the harmful consequences of his volitional conduct.
Consider a couple of examples to see the ordinary mean-
ing of the word “use” in this context. If a person with
soapy hands loses his grip on a plate, which then shatters
and cuts his wife, the person has not “use[d]” physical
force in common parlance. But now suppose a person
throws a plate in anger against the wall near where his
wife is standing. That hurl counts as a “use” of force even
if the husband did not know for certain (or have as an
object), but only recognized a substantial risk, that a
shard from the plate would ricochet and injure his wife.
Similarly, to spin out a scenario discussed at oral argu-
ment, if a person lets slip a door that he is trying to hold
open for his girlfriend, he has not actively employed
(“used”) force even though the result is to hurt her. But if
he slams the door shut with his girlfriend following close
behind, then he has done so—regardless of whether he
thinks it absolutely sure or only quite likely that he will
catch her fingers in the jamb. See Tr. of Oral Arg. 10–11
(counsel for petitioners acknowledging that this example
involves “the use of physical force”). Once again, the word
“use” does not exclude from §922(g)(9)’s compass an act of
force carried out in conscious disregard of its substantial
risk of causing harm.
And contrary to petitioners’ view, nothing in Leocal v.
Ashcroft, 543 U.S. 1 (2004), suggests a different conclu-
Cite as: 579 U. S. ____ (2016) 7
Opinion of the Court
sion—i.e., that “use” marks a dividing line between reck-
less and knowing conduct. See Brief for Petitioners 18–22.
In that decision, this Court addressed a statutory defini-
tion similar to §921(a)(33)(A): there, “the use . . . of physi-
cal force against the person or property of another.” 18
U.S. C. §16. That provision excludes “merely accidental”
conduct, Leocal held, because “it is [not] natural to say
that a person actively employs physical force against
another person by accident.” 543 U.S., at 9. For example,
the Court stated, one “would not ordinarily say a person
‘use[s] . . . physical force against’ another by stumbling
and falling into him.” Ibid. That reasoning fully accords
with our analysis here. Conduct like stumbling (or in our
hypothetical, dropping a plate) is a true accident, and so
too the injury arising from it; hence the difficulty of de-
scribing that conduct as the “active employment” of force.
Ibid. But the same is not true of reckless behavior—acts
undertaken with awareness of their substantial risk of
causing injury (in our contrasting hypo, hurling the plate).
The harm such conduct causes is the result of a deliberate
decision to endanger another—no more an “accident” than
if the “substantial risk” were “practically certain.” See
supra, at 4 (comparing reckless and knowing acts). And
indeed, Leocal itself recognized the distinction between
accidents and recklessness, specifically reserving the issue
whether the definition in §16 embraces reckless conduct,
see 543 U.S., at 13—as we now hold §921(a)(33)(A) does.4
——————
4 Like Leocal, our decision today concerning §921(a)(33)(A)’s scope
does not resolve whether §16 includes reckless behavior. Courts have
sometimes given those two statutory definitions divergent readings in
light of differences in their contexts and purposes, and we do not
foreclose that possibility with respect to their required mental states.
Cf. United States v. Castleman, 572 U. S. ___, ___, n. 4 (2014) (slip op.,
at 6, n. 4) (interpreting “force” in §921(a)(33)(A) to encompass any
offensive touching, while acknowledging that federal appeals courts
have usually read the same term in §16 to reach only “violent force”).
All we say here is that Leocal’s exclusion of accidental conduct from a
8 VOISINE v. UNITED STATES
Opinion of the Court
In sum, Congress’s definition of a “misdemeanor crime
of violence” contains no exclusion for convictions based on
reckless behavior. A person who assaults another reck-
lessly “use[s]” force, no less than one who carries out that
same action knowingly or intentionally. The relevant text
thus supports prohibiting petitioners, and others with
similar criminal records, from possessing firearms.
B
So too does the relevant history. As explained earlier,
Congress enacted §922(g)(9) in 1996 to bar those domestic
abusers convicted of garden-variety assault or battery
misdemeanors—just like those convicted of felonies—from
owning guns. See supra, at 1–2; Castleman, 572 U. S., at
___, ___ (slip op., at 2, 6); Hayes, 555 U.S., at 426–427.
Then, as now, a significant majority of jurisdictions—34
States plus the District of Columbia—defined such mis-
demeanor offenses to include the reckless infliction of
bodily harm. See Brief for United States 7a–19a (collect-
ing statutes). That agreement was no coincidence. Sev-
eral decades earlier, the Model Penal Code had taken the
position that a mens rea of recklessness should generally
suffice to establish criminal liability, including for assault.
See §2.02(3), Comments 4–5, at 243–244 (“purpose,
knowledge, and recklessness are properly the basis for”
such liability); §211.1 (defining assault to include “pur-
posely, knowingly, or recklessly caus[ing] bodily injury”).
States quickly incorporated that view into their misde-
meanor assault and battery statutes. So in linking
§922(g)(9) to those laws, Congress must have known it was
sweeping in some persons who had engaged in reckless
conduct. See, e.g., United States v. Bailey, 9 Pet. 238, 256
(1835) (Story, J.) (“Congress must be presumed to have
——————
definition hinging on the “use” of force is in no way inconsistent with
our inclusion of reckless conduct in a similarly worded provision.
Cite as: 579 U. S. ____ (2016) 9
Opinion of the Court
legislated under this known state of the laws”). And
indeed, that was part of the point: to apply firearms re-
strictions to those abusers, along with all others, whom
the States’ ordinary misdemeanor assault laws covered.
What is more, petitioners’ reading risks rendering
§922(g)(9) broadly inoperative in the 35 jurisdictions with
assault laws extending to recklessness—that is, inapplica-
ble even to persons who commit that crime knowingly or
intentionally. Consider Maine’s statute, which (in typical
fashion) makes it a misdemeanor to “intentionally, know-
ingly or recklessly” injure another. Me. Rev. Stat. Ann.,
Tit. 17–A, §207(1)(A). Assuming that provision defines a
single crime (which happens to list alternative mental
states)—and accepting petitioners’ view that §921(a)
(33)(A) requires at least a knowing mens rea—then,
under Descamps v. United States, 570 U. S. ___ (2013),
no conviction obtained under Maine’s statute could
qualify as a “misdemeanor crime of domestic violence.”
See id., at ___ (slip op., at 5) (If a state crime “sweeps more
broadly” than the federally defined one, a conviction for
the state offense “cannot count” as a predicate, no matter
what mens rea the defendant actually had). So in the 35
jurisdictions like Maine, petitioners’ reading risks allow-
ing domestic abusers of all mental states to evade
§922(g)(9)’s firearms ban. In Castleman, we declined to
construe §921(a)(33)(A) so as to render §922(g)(9) ineffec-
tive in 10 States. See 572 U. S., at ___ (slip op., at 9). All
the more so here, where petitioners’ view would jeopardize
§922(g)(9)’s force in several times that many.
Petitioners respond that we should ignore the assault
and battery laws actually on the books when Congress
enacted §922(g)(9). In construing the statute, they urge,
we should look instead to how the common law defined
those crimes in an earlier age. See Brief for Petitioners
13–15. And that approach, petitioners claim, would neces-
sitate reversing their convictions because the common law
10 VOISINE v. UNITED STATES
Opinion of the Court
“required a mens rea greater than recklessness.” Id., at
17.
But we see no reason to wind the clock back so far.
Once again: Congress passed §922(g)(9) to take guns out of
the hands of abusers convicted under the misdemeanor
assault laws then in general use in the States. See supra,
at 1–2, 8. And by that time, a substantial majority of
jurisdictions, following the Model Penal Code’s lead, had
abandoned the common law’s approach to mens rea in
drafting and interpreting their assault and battery stat-
utes. Indeed, most had gone down that road decades
before. That was the backdrop against which Congress
was legislating. Nothing suggests that, in enacting
§922(g)(9), Congress wished to look beyond that real world
to a common-law precursor that had largely expired. To
the contrary, such an approach would have undermined
Congress’s aim by tying the ban on firearms possession
not to the laws under which abusers are prosecuted but
instead to a legal anachronism.5
And anyway, we would not know how to resolve whether
recklessness sufficed for a battery conviction at common
law. Recklessness was not a word in the common law’s
standard lexicon, nor an idea in its conceptual framework;
——————
5 As petitioners observe, this Court looked to the common law in Cas-
tleman to define the term “force” in §921(a)(33)(A). See 572 U. S., at
___–___ (slip op., at 4–5); Brief for Petitioners 13–15. But we did so for
reasons not present here. “Force,” we explained, was “a common-law
term of art” with an “established common-law meaning.” 572 U. S., at
___ (slip op., at 5) (internal quotation marks omitted). And we thought
that Congress meant to adhere to that meaning given its “perfect[ ]” fit
with §922(g)(9)’s goal. Ibid. By contrast, neither party pretends that
the statutory term “use”—the only one identified as potentially relevant
here—has any particular common-law definition. And as explained
above, the watershed change in how state legislatures thought of mens
rea after the Model Penal Code makes the common law a bad match for
the ordinary misdemeanor assault and battery statutes in Congress’s
sightline.
Cite as: 579 U. S. ____ (2016) 11
Opinion of the Court
only in the mid- to late-1800’s did courts begin to address
reckless behavior in those terms. See Hall, Assault and
Battery by the Reckless Motorist, 31 J. Crim. L. & C. 133,
138–139 (1940). The common law traditionally used a
variety of overlapping and, frankly, confusing phrases to
describe culpable mental states—among them, specific
intent, general intent, presumed intent, willfulness, and
malice. See, e.g., Morissette v. United States, 342 U.S.
246, 252 (1952); Model Penal Code §2.02, Comment 1, at
230. Whether and where conduct that we would today
describe as reckless fits into that obscure scheme is any-
one’s guess: Neither petitioners’ citations, nor the Gov-
ernment’s competing ones, have succeeded in resolving
that counterfactual question. And that indeterminacy
confirms our conclusion that Congress had no thought of
incorporating the common law’s treatment of mens rea
into §921(a)(33)(A). That provision instead corresponds to
the ordinary misdemeanor assault and battery laws used
to prosecute domestic abuse, regardless of how their men-
tal state requirements might—or, then again, might not—
conform to the common law’s.6
——————
6 Petitioners make two last arguments for reading §921(a)(33)(A)
their way, but they do not persuade us. First, petitioners contend that
we should adopt their construction to avoid creating a question about
whether the Second Amendment permits imposing a lifetime firearms
ban on a person convicted of a misdemeanor involving reckless conduct.
See Brief for Petitioners 32–36. And second, petitioners assert that the
rule of lenity requires accepting their view. See id., at 31–32. But
neither of those arguments can succeed if the statute is clear. See
Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998)
(noting that “the doctrine of constitutional doubt . . . enters in only
where a statute is susceptible of two constructions” (internal quotation
marks omitted)); Abramski v. United States, 573 U. S. ___, ___, n. 10
(2014) (slip op., at 18, n. 10) (stating that the rule of lenity applies only
in cases of genuine ambiguity). And as we have shown, §921(a)(33)(A)
plainly encompasses reckless assaults.
12 VOISINE v. UNITED STATES
Opinion of the Court
III
The federal ban on firearms possession applies to any
person with a prior misdemeanor conviction for the “use
. . . of physical force” against a domestic relation.
§921(a)(33)(A). That language, naturally read, encom-
passes acts of force undertaken recklessly—i.e., with
conscious disregard of a substantial risk of harm. And the
state-law backdrop to that provision, which included
misdemeanor assault statutes covering reckless conduct in
a significant majority of jurisdictions, indicates that Con-
gress meant just what it said. Each petitioner’s possession
of a gun, following a conviction under Maine law for abus-
ing a domestic partner, therefore violates §922(g)(9). We
accordingly affirm the judgment of the Court of Appeals.
It is so ordered.
Cite as: 579 U. S. ____ (2016) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–10154
_________________
STEPHEN L. VOISINE AND WILLIAM E. ARMSTRONG,
III, PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 27, 2016]
JUSTICE THOMAS, with whom JUSTICE SOTOMAYOR joins
as to Parts I and II, dissenting.
Federal law makes it a crime for anyone previously
convicted of a “misdemeanor crime of domestic violence” to
possess a firearm “in or affecting commerce.” 18 U.S. C.
§922(g)(9). A “misdemeanor crime of domestic violence”
includes “an offense that . . . has, as an element, the use or
attempted use of physical force . . . committed by [certain
close family members] of the victim.” §921(a)(33)(A)(ii).
In this case, petitioners were convicted under §922(g)(9)
because they possessed firearms and had prior convictions
for assault under Maine’s statute prohibiting “intention-
ally, knowingly or recklessly caus[ing] bodily injury or offen-
sive physical contact to another person.” Me. Rev. Stat.
Ann., Tit. 17–A, §207(1)(A) (2006). The question presented
is whether a prior conviction under §207 has, as an
element, the “use of physical force,” such that the convic-
tion can strip someone of his right to possess a firearm. In
my view, §207 does not qualify as such an offense, and the
majority errs in holding otherwise. I respectfully dissent.
I
To qualify as a “ ‘misdemeanor crime of domestic vio-
lence,’ ” the Maine assault statute must have as an ele-
ment the “use of physical force.” §921(a)(33)(A)(ii). Be-
2 VOISINE v. UNITED STATES
THOMAS, J., dissenting
cause mere recklessness is sufficient to sustain a convic-
tion under §207, a conviction does not necessarily involve
the “use” of physical force, and thus, does not trigger
§922(g)(9)’s prohibition on firearm possession.
A
Three features of §921(a)(33)(A)(ii) establish that the
“use of physical force” requires intentional conduct. First,
the word “use” in that provision is best read to require
intentional conduct. As the majority recognizes, the noun
“use” means “the ‘act of employing’ something.” Ante, at 5
(quoting dictionaries). A “use” is “[t]he act of employing a
thing for any . . . purpose.” 19 Oxford English Dictionary
350 (2d ed. 1989). To “use” something, in other words, is
to employ the thing for its instrumental value, i.e., to
employ the thing to accomplish a further goal. See United
States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at
13). A “use,” therefore, is an inherently intentional act—
that is, an act done for the purpose of causing certain
consequences or at least with knowledge that those conse-
quences will ensue. See Restatement (Second) of Torts
§8A, p. 15 (1965) (defining intentional acts).
We have routinely defined “use” in ways that make clear
that the conduct must be intentional. In Bailey v. United
States, 516 U.S. 137 (1995), for example, we held that the
phrase “[use of] a firearm” required “active employment”
of the firearm, such as “brandishing, displaying, bartering,
striking with, and, most obviously, firing or attempting to
fire a firearm.” Id., at 143, 148 (emphasis deleted). We
have similarly held that the use of force requires more
than “negligent or merely accidental conduct.” Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004). We concluded that “[w]hile
one may, in theory, actively employ something in an acci-
dental manner, it is much less natural to say that a person
actively employs physical force against another person by
accident.” Ibid. Thus, shooting a gun would be using a
Cite as: 579 U. S. ____ (2016) 3
THOMAS, J., dissenting
firearm in relation to a crime. Bailey, supra, at 148.
Recklessly leaving a loaded gun in one’s trunk, which then
discharges after being jostled during the car ride, would
not. The person who placed that gun in the trunk might
have acted recklessly or negligently, but he did not actively
employ the gun in a crime.
Second, especially in a legal context, “force” generally
connotes the use of violence against another. Black’s Law
Dictionary, for example, defines “force” to mean “[p]ower,
violence, or pressure directed against a person or thing.”
Black’s Law Dictionary 656 (7th ed. 1999). Other diction-
aries offer similar definitions. E.g., Random House Dic-
tionary of the English Language 748 (def. 5) (2d ed. 1987)
(“force,” when used in law, means “unlawful violence
threatened or committed against persons or property”); 6
Oxford English Dictionary 34 (def. I(5)(c)) (“Unlawful
violence offered to persons or things”). And “violence,”
when used in a legal context, also implies an intentional
act. See Black’s Law Dictionary 1564 (“violence” is the
“[u]njust or unwarranted use of force, usu. accompanied by
fury, vehemence, or outrage; physical force unlawfully
exercised with the intent to harm”).1 When a person talks
about “using force” against another, one thinks of inten-
tional acts—punching, kicking, shoving, or using a weapon.
——————
1 Some of our cases have distinguished “violent force”—force capable
of causing physical injury—and common-law force, which included all
nonconsensual touching, see Johnson v. United States, 559 U.S. 133,
140–141 (2010), but others have not, see United States v. Castleman,
572 U. S. ___, ___ (2014) (slip op., at 5). The common law did not draw
this distinction because the common law considered nonconsensual
touching as a form of violence against the person. 3 W. Blackstone,
Commentaries *120 (“[T]he law cannot draw the line between different
degrees of violence, and therefore totally prohibits the first and lowest
stage of it”). The Court should assume that, absent a contrary textual
indication, Congress legislated against this common-law backdrop. See
Castleman, supra, at ___ (slip op., at 4). Consequently, I treat noncon-
sensual touching as a type of violence.
4 VOISINE v. UNITED STATES
THOMAS, J., dissenting
Conversely, one would not naturally call a car acci-
dent a “use of force,” even if people were injured by the
force of the accident. As Justice Holmes observed, “[E]ven
a dog distinguishes between being stumbled over and
being kicked.” O. Holmes, The Common Law 3 (1881).
Third, context confirms that “use of physical force”
connotes an intentional act. Section 921(a)(33)(A)(ii)’s
prohibitions also include “the threatened use of a deadly
weapon.” In that neighboring prohibition, “use” most
naturally means active employment of the weapon. And it
would be odd to say that “use” in that provision refers to
active employment (an intentional act) when threatening
someone with a weapon, but “use” here is satisfied by
merely reckless conduct. See Sorenson v. Secretary of
Treasury, 475 U.S. 851, 860 (1986) (the same words in a
statute presumptively have the same meaning). Thus, the
“use of physical force” against a family member refers to
intentional acts of violence against a family member.
B
On this interpretation, Maine’s assault statute likely
does not qualify as a “misdemeanor crime of domestic
violence” and thus does not trigger the prohibition on
possessing firearms, §922(g)(9). The Maine statute ap-
pears to lack, as a required element, the “use or attempted
use of physical force.” Maine’s statute punishes at least
some conduct that does not involve the “use of physical
force.” Section 207 criminalizes “recklessly caus[ing]
bodily injury or offensive physical contact to another
person.” By criminalizing all reckless conduct, the Maine
statute captures conduct such as recklessly injuring a
passenger by texting while driving resulting in a crash.
Petitioners’ charging documents generically recited the
statutory language; they did not charge intentional, know-
ing, and reckless harm as alternative counts. Accordingly,
Maine’s statute appears to treat “intentionally, knowingly,
Cite as: 579 U. S. ____ (2016) 5
THOMAS, J., dissenting
or recklessly” causing bodily injury or an offensive touch-
ing as a single, indivisible offense that is satisfied by
recklessness. See Mathis v. United States, ante, at 14–15.
So petitioners’ prior assault convictions do not necessarily
have as an element the use of physical force against a
family member. These prior convictions, therefore, do not
qualify as a misdemeanor crime involving domestic vio-
lence under federal law, and petitioners’ convictions ac-
cordingly should be reversed. At the very least, to the
extent there remains uncertainty over whether Maine’s
assault statute is divisible, the Court should vacate and
remand for the First Circuit to determine that statutory
interpretation question in the first instance.
II
To illustrate where I part ways with the majority, con-
sider different mental states with which a person could
create and apply force.2 First, a person can create force
intentionally or recklessly.3 For example, a person can
intentionally throw a punch or a person can crash his car
by driving recklessly. Second, a person can intentionally
or recklessly harm a particular person or object as a result
of that force. For example, a person could throw a punch
at a particular person (thereby intentionally applying
force to that person) or a person could swing a baseball bat
too close to someone (thereby recklessly applying force to
that person).
These different mental states give rise to three relevant
——————
2 Although “force” generally has a narrower legal connotation of in-
tentional acts designed to cause harm, see supra, at 3–4, I will use
“force” in this Part in its broadest sense to mean “strength or power
exerted upon an object.” Random House Dictionary of the English
Language 748 (def. 2) (2d ed. 1987).
3 To simplify, I am using only those mental states relevant to the
Court’s resolution of this case. A person could also create a force
negligently or blamelessly.
6 VOISINE v. UNITED STATES
THOMAS, J., dissenting
categories of conduct. A person might intentionally create
force and intentionally apply that force against an object
(e.g., punching a punching bag). A person might also
intentionally create force but recklessly apply that force
against an object (e.g., practicing a kick in the air, but
recklessly hitting a piece of furniture). Or a person could
recklessly create force that results in damage, such as the
car crash example.
The question before us is what mental state suffices for
a “use of physical force” against a family member. In my
view, a “use of physical force” most naturally refers to
cases where a person intentionally creates force and inten-
tionally applies that force against a family member. It
also includes (at least some) cases where a person inten-
tionally creates force but recklessly applies it to a family
member. But I part ways with the majority’s conclusion
that purely reckless conduct—meaning, where a person
recklessly creates force—constitutes a “use of physical
force.” In my view, it does not, and therefore, the “use of
physical force” is narrower than most state assault stat-
utes, which punish anyone who recklessly causes physical
injury.
A
To identify the scope of the “use of physical force,” con-
sider three different types of intentional and reckless force
resulting in physical injury.
1
The paradigmatic case of battery: A person intentionally
unleashes force and intends that the force will harm a
particular person. This might include, for example,
punching or kicking someone. Both the majority and I
agree that these cases constitute a “use of physical force”
under §921(a)(33)(A)(ii).
This first category includes all cases where a person
Cite as: 579 U. S. ____ (2016) 7
THOMAS, J., dissenting
intentionally creates force and desires or knows with a
practical certainty that that force will cause harm. This is
because the law traditionally treats conduct as intended in
two circumstances. First, conduct is intentional when the
actor desires to produce a specific result. 1 W. LaFave,
Substantive Criminal Law §5.2(a), pp. 340–342 (2d ed.
2003). But conduct is also traditionally deemed inten-
tional when a person acts “knowingly”: that is, he knows
with practical certainty that a result will follow from his
conduct. Ibid.; see also Restatement (Second) of Torts §8A,
Comment b, at 15 (“If the actor knows that the conse-
quences are certain, or substantially certain, to result
from his act, and still goes ahead, he is treated by the law
as if he had in fact desired to produce the result”).
To illustrate, suppose a person strikes his friend for the
purpose of demonstrating a karate move. The person has
no desire to injure his friend, but he knows that the move
is so dangerous that he is practically certain his friend will
be injured. Under the common law, the person intended to
injure his friend, even though he acted only with
knowledge that his friend would be injured rather than
the desire to harm him. Thus, even when a person acts
knowingly rather than purposefully, this type of conduct is
still a “use of physical force.”
2
The second category involves a person who intentionally
unleashes force that recklessly causes injury. The major-
ity gives two examples:
1. The Angry Plate Thrower: “[A] person throws a
plate in anger against the wall near where his wife is
standing.” Ante, at 6. The plate shatters, and a shard
injures her. Ibid.
2. The Door Slammer: “[A person] slams the door shut
with his girlfriend following close behind” with the ef-
fect of “catch[ing] her fingers in the jamb.” Ibid.
8 VOISINE v. UNITED STATES
THOMAS, J., dissenting
The Angry Plate Thrower and the Door Slammer both
intentionally unleashed physical force, but they did not
intend to direct that force at those whom they harmed.
Thus, they intentionally employed force, but recklessly
caused physical injury with that force. The majority
believes that these cases also constitute a “use of physical
force,” and I agree. The Angry Plate Thrower has used
force against the plate, and the Door Slammer has used
force against the door.
The more difficult question is whether this “use of phys-
ical force” comes within §921(a)(33)(A)(ii), which requires
that the “use of physical force” be committed by someone
having a familial relationship with the victim. The natu-
ral reading of that provision is that the use of physical
force must be against a family member. In some cases,
the law readily transfers the intent to use force from the
object to the actual victim. Take the Angry Plate Thrower:
If a husband throws a plate at the wall near his wife to
scare her, that is assault. If the plate breaks and cuts her,
it becomes a battery, regardless of whether he intended
the plate to make contact with her person. See W. Keeton,
D. Dobbs, R. Keeton, & D. Owens, Prosser and Keeton on
Law of Torts §9, pp. 39–42 (5th ed. 1984) (Prosser and
Keeton). Similarly, “if one person intends to harm a sec-
ond person but instead unintentionally harms a third, the
first person’s criminal or tortious intent toward the second
applies to the third as well.” Black’s Law Dictionary 1504
(defining transferred-intent doctrine); see also 1 LaFave,
supra, §5.2(c)(4), at 349–350. Thus, where a person acts in
a violent and patently unjustified manner, the law will
often impute that the actor intended to cause the injury
resulting from his conduct, even if he actually intended to
direct his use of force elsewhere. Because we presume
that Congress legislates against the backdrop of the com-
mon law, see Astoria Fed. Sav. & Loan Assn. v. Solimino,
501 U.S. 104, 108 (1991), these cases would qualify as the
Cite as: 579 U. S. ____ (2016) 9
THOMAS, J., dissenting
“use of physical force” against a family member.4
3
Finally, and most problematic for the majority’s ap-
proach, a person could recklessly unleash force that reck-
lessly causes injury. Consider two examples:
1. The Text-Messaging Dad: Knowing that he should
not be texting and driving, a father sends a text mes-
sage to his wife. The distraction causes the father to
rear end the car in front of him. His son, who is a
passenger, is injured.
2. The Reckless Policeman: A police officer speeds to a
crime scene without activating his emergency lights
and siren and careens into another car in an intersec-
tion. That accident causes the police officer’s car to
strike another police officer, who was standing at the
intersection. See Seaton v. State, 385 S.W.3d 85, 88
(Tex. App. 2012).
In these cases, both the unleashing of the “force” (the
car crash) and the resulting harm (the physical injury)
were reckless. Under the majority’s reading of §921(a)
(33)(A)(ii), the husband “use[d] . . . physical force” against
his son, and the police officer “use[d] . . . physical force”
against the other officer.
But this category is where the majority and I part com-
pany. These examples do not involve the “use of physical
force” under any conventional understanding of “use”
because they do not involve an active employment of
something for a particular purpose. See supra, at 2–3. In
——————
4 The Door Slammer might also fit within the “use of physical force,”
although that is a harder question. The Door Slammer has used force
against the door, which has then caused injury to his girlfriend. But
traditional principles of law would not generally transfer the actor’s
intent to use force against the door to the girlfriend because, unlike
placing someone in fear of bodily injury, slamming a door is not inher-
ently wrongful and illegal conduct.
10 VOISINE v. UNITED STATES
THOMAS, J., dissenting
the second category, the actors intentionally use violence
against property; this is why the majority can plausibly
argue that they have “used” force, even though that force
was not intended to harm their family members. See
supra, at 8–9 (discussing transferred intent). But when
an individual does not engage in any violence against
persons or property—that is, when physical injuries result
from purely reckless conduct—there is no “use” of physical
force.
* * *
The “use of physical force” against a family member
includes cases where a person intentionally commits a
violent act against a family member. And the term in-
cludes at least some cases where a person engages in a
violent act that results in an unintended injury to a family
member. But the term does not include nonviolent, reck-
less acts that cause physical injury or an offensive touch-
ing. Accordingly, the majority’s definition is overbroad.
B
In reaching its contrary conclusion, the majority con-
fuses various concepts. First, and as discussed, the majority
decides that a person who acts recklessly has used physi-
cal force against another. Ante, at 6–8. But that fails to
appreciate the distinction between intentional and reck-
less conduct. A “use” of physical force requires the intent
to cause harm, and the law will impute that intent where
the actor knows with a practical certainty that it will
cause harm. But the law will not impute that intent from
merely reckless conduct. Second, and perhaps to rein in
its overly broad conception of a use of force, the majority
concludes that only “volitional” acts constitute uses of
force, ante, at 6, and that mere “accident[s]” do not, ante,
at 7. These portions of the majority’s analysis conflate
“volitional” conduct with “intentional” mens rea and mis-
Cite as: 579 U. S. ____ (2016) 11
THOMAS, J., dissenting
apprehends the relevant meaning of an “accident.”
1
The majority blurs the distinction between recklessness
and intentional wrongdoing by overlooking the difference
between the mens rea for force and the mens rea for caus-
ing harm with that force. The majority says that “ ‘use’
does not demand that the person applying force have the
purpose or practical certainty that it will cause harm”
(namely, knowledge), “as compared with the understand-
ing that it is [a substantial and unjustifiable risk that it
will] do so” (the standard for recklessness).5 Ante, at 6.
Put in the language of mens rea, the majority is saying
that purposeful, knowing, and reckless applications of
force are all equally “uses” of force.
But the majority fails to explain why mere recklessness
in creating force—as opposed to recklessness in causing
harm with intentional force—is sufficient. The majority
gives the Angry Plate Thrower and the Door Slammer as
examples of reckless conduct that are “uses” of physical
force, but those examples involve persons who intentionally
use force that recklessly causes injuries. Ibid. Reckless
assault, however, extends well beyond intentional force
that recklessly causes injury. In States where the Model
Penal Code has influence, reckless assault includes any
recklessly caused physical injury. See ALI, Model Penal
Code §211.1(1)(a) (1980). This means that the Reckless
——————
5 The majority’s equation of recklessness with “the understanding”
that one’s actions are “substantially likely” to cause harm, ante, at 6,
misstates the standard for recklessness in States that follow the Model
Penal Code. Recklessness only requires a “substantial and unjustifi-
able risk.” ALI, Model Penal Code §2.02(2)(c) (1980). A “substantial”
risk can include very small risks when there is no justification for
taking the risk. See id., §2.02, Comment 1, at 237, n. 14. Thus, it
would be reckless to play Russian roulette with a revolver having 1,000
chambers, even though there is a 99.9% chance that no one will be
injured.
12 VOISINE v. UNITED STATES
THOMAS, J., dissenting
Policeman and the Text-Messaging Dad are as guilty of
assault as the Angry Plate Thrower. See, e.g., Seaton, 385
S.W.3d, at 89–90; see also People v. Grenier, 250 Ohio App.
Div. 2d 874, 874–875, 672 N. Y. S. 2d 499, 500–501 (1998)
(upholding an assault conviction where a drunk driver
injured his passengers in a car accident).
The majority’s examples are only those in which a per-
son has intentionally used force, meaning that the person
acts with purpose or knowledge that force is involved.
Ante, at 6. As a result, the majority overlooks the critical
distinction between conduct that is intended to cause
harm and conduct that is not intended to cause harm.
Violently throwing a plate against a wall is a use of force.
Speeding on a roadway is not. That reflects the funda-
mental difference between intentional and reckless
wrongdoing. An intentional wrong is designed to inflict
harm. See Restatement (Second) of Torts §8A, at 15. A
reckless wrong is not: “While an act to be reckless must be
intended by the actor, the actor does not intend to cause
the harm which results from it.” Id., §500, Comment f, at
590.
All that remains of the majority’s analysis is its unsup-
ported conclusion that recklessness looks enough like
knowledge, so that the former suffices for a use of force
just as the latter does. Ante, at 6. That overlooks a crucial
distinction between a “practical certainty” and a substan-
tial risk. When a person acts with practical certainty, he
intentionally produces a result. As explained above, su-
pra, at 7, when a person acts with knowledge that certain
consequences will result, the law imputes to that person
the intent to cause those consequences. And the require-
ment of a “practical” certainty reflects that, in ordinary
life, people rarely have perfect certitude of the facts that
they “know.” But as the probability decreases, “the actor’s
conduct loses the character of intent, and becomes mere
recklessness.” Restatement (Second) of Torts §8A, Com-
Cite as: 579 U. S. ____ (2016) 13
THOMAS, J., dissenting
ment b, at 15. And the distinction between intentional
and reckless conduct is key for defining “use.” When a
person acts with a practical certainty that he will employ
force, he intends to cause harm; he has actively employed
force for an instrumental purpose, and that is why we can
fairly say he “uses” force. In the case of reckless wrong-
doing, however, the injury the actor has caused is just an
accidental byproduct of inappropriately risky behavior; he
has not actively employed force.
In sum, “use” requires the intent to employ the thing
being used. And in law, that intent will be imputed when
a person acts with practical certainty that he will actively
employ that thing. Merely disregarding a risk that a
harm will result, however, does not supply the requisite
intent.
2
To limit its definition of “use,” the majority adds two
additional requirements. The conduct must be “voli-
tional,” and it cannot be merely “accident[al].” Ante, at 5–7.
These additional requirements will cause confusion, and
neither will limit the breadth of the majority’s adopted
understanding of a “use of physical force.”
First, the majority requires that the use of force must be
“volitional,” so that “an involuntary motion, even a power-
ful one, is not naturally described as an active employ-
ment of force.” Ante, at 5–6. The majority provides two
examples:
1. The Soapy-Handed Husband: “[A] person with
soapy hands loses his grip on a plate, which then
shatters and cuts his wife.” Ante, at 6.
2. The Chivalrous Door Holder: “[A] person lets slip a
door that he is trying to hold open for his girlfriend.”
Ibid.
In the majority’s view, a husband who loses his grip on a
14 VOISINE v. UNITED STATES
THOMAS, J., dissenting
plate or a boyfriend who lets the door slip has not engaged
in a volitional act creating force. Ibid. The majority dis-
tinguishes this “volitional” act requirement from the
“mental state of intention, knowledge, or recklessness with
respect to the harmful consequences of his volitional con-
duct.” Ibid. The Angry Plate Thrower—unlike the Soapy-
Handed Husband or Chivalrous Door Holder—has en-
gaged in a volitional act, even if he did not intend to hurl
the plate at his wife. Ibid.
The majority’s use of “volitional” is inconsistent with its
traditional legal definition. The husband who drops a dish
on his wife’s foot and the boyfriend who loses his grip
while holding the door have acted volitionally. “[A]n ‘act,’
as that term is ordinarily used, is a voluntary contraction
of the muscles, and nothing more.” Prosser and Keeton §8,
at 34; see also Model Penal Code §2.01 (defining the volun-
tary act requirement). For the plate and door examples
not to be volitional acts, they would need to be unwilled
muscular movements, such as a person who drops the
plate because of a seizure.
In calling the force in these cases nonvolitional, the
majority has confounded the minimum mens rea generally
necessary to trigger criminal liability (recklessness) with
the requirement that a person perform a volitional act.
Although all involuntary actions are blameless, not all
blameless conduct is involuntary.
What the majority means to say is that the men did not
intentionally employ force, a requirement materially dif-
ferent from a volitional act. And this requirement poses a
dilemma for the majority. Recklessly unleashing a force
that recklessly causes physical injury—for example, a
police officer speeding through the intersection without
triggering his lights and siren—is an assault in States
that follow the Model Penal Code. See supra, at 9. If the
majority’s rule is to include all reckless assault, then the
majority must accept that the Text-Messaging Dad is as
Cite as: 579 U. S. ____ (2016) 15
THOMAS, J., dissenting
guilty of using force against his son as the husband who
angrily throws a plate toward his wife—an implausible
result. Alternatively, the majority must acknowledge that
its “volitional” act requirement is actually a requirement
that the use of force be intentional, even if that intentional
act of violence results in a recklessly caused, but unin-
tended, injury. The majority, of course, refuses to do so
because that approach would remove many assault convic-
tions, especially in the many States that have adopted the
Model Penal Code, from the sweep of the federal statute.
Thus, the majority is left misapplying basic principles of
criminal law to rationalize why all “assault” under the
Model Penal Code constitutes the “use of physical force”
under §921(a)(33)(A)(ii).
Second and relatedly, the majority asserts that a use of
force cannot be merely accidental. But this gloss on what
constitutes a use of force provides no further clarity. The
majority’s attempt to distinguish “recklessness” from an
“accident,” ante, at 7, is an equivocation on the meaning of
“accident.” An accident can mean that someone was
blameless—for example, a driver who accidentally strikes
a deer that darts into a roadway. But an accident can also
refer to the fact that the result was unintended: A car
accident is no less an “accident” just because a driver
acted negligently or recklessly. Neither labeling an act
“volitional” nor labeling it a mere “accident” will rein in
the majority’s overly broad understanding of a “use of
physical force.”
* * *
If Congress wanted to sweep in all reckless conduct, it
could have written §921(a)(33)(A)(ii) in different language.
Congress might have prohibited the possession of firearms
by anyone convicted under a state law prohibiting assault
or battery. Congress could also have used language track-
ing the Model Penal Code by saying that a conviction must
16 VOISINE v. UNITED STATES
THOMAS, J., dissenting
have, as an element, “the intentional, knowing, or reckless
causation of physical injury.” But Congress instead de-
fined a “misdemeanor crime of domestic violence” by re-
quiring that the offense have “the use of physical force.”
And a “use of physical force” has a well-understood mean-
ing applying only to intentional acts designed to cause
harm.
III
Even assuming any doubt remains over the reading of
“use of physical force,” the majority errs by reading the
statute in a way that creates serious constitutional prob-
lems. The doctrine of constitutional avoidance “com-
mand[s] courts, when faced with two plausible construc-
tions of a statute—one constitutional and the other
unconstitutional—to choose the constitutional reading.”
Northwest Austin Municipal Util. Dist. No. One v. Holder,
557 U.S. 193, 213 (2009) (THOMAS, J., concurring in
judgment in part and dissenting in part) (internal quota-
tion marks omitted). Section 922(g)(9) is already very
broad. It imposes a lifetime ban on gun ownership for a
single intentional nonconsensual touching of a family
member. A mother who slaps her 18-year-old son for
talking back to her—an intentional use of force—could
lose her right to bear arms forever if she is cited by the
police under a local ordinance. The majority seeks to
expand that already broad rule to any reckless physical
injury or nonconsensual touch. I would not extend the
statute into that constitutionally problematic territory.
The Second Amendment protects “the right of the people
to keep and bear Arms.” In District of Columbia v. Heller,
554 U.S. 570, 624, 627, 635 (2008), the Court held that
the Amendment protects the right of all law-abiding citi-
zens to keep and bear arms that are in common use for
traditionally lawful purposes, including self-defense. And
in McDonald v. Chicago, 561 U.S. 742 (2010), the Court
Cite as: 579 U. S. ____ (2016) 17
THOMAS, J., dissenting
held that the right to keep and bear arms is a fundamen-
tal right. See id., at 767–778; id., at 806 (THOMAS, J.,
concurring in part and concurring in judgment).
The protections enumerated in the Second Amendment,
no less than those enumerated in the First, are not abso-
lute prohibitions against government regulation. Heller,
554 U.S., at 595, 626–627. Traditionally, States have
imposed narrow limitations on an individual’s exercise of
his right to keep and bear arms, such as prohibiting the
carrying of weapons in a concealed manner or in sensitive
locations, such as government buildings. Id., at 626–627;
see, e.g., State v. Kerner, 181 N. C. 574, 578–579, 107 S.E.
222, 225 (1921). But these narrow restrictions neither
prohibit nor broadly frustrate any individual from gener-
ally exercising his right to bear arms.
Some laws, however, broadly divest an individual of his
Second Amendment rights. Heller approved, in dicta, laws
that prohibit dangerous persons, including felons and the
mentally ill, from having arms. 554 U.S., at 626. These
laws are not narrow restrictions on the right because they
prohibit certain individuals from exercising their Second
Amendment rights at all times and in all places. To be
constitutional, therefore, a law that broadly frustrates an
individual’s right to keep and bear arms must target
individuals who are beyond the scope of the “People”
protected by the Second Amendment.
Section 922(g)(9) does far more than “close [a] dangerous
loophole” by prohibiting individuals who had committed
felony domestic violence from possessing guns simply
because they pleaded guilty to misdemeanors. Ante, at 1
(internal quotation marks omitted). It imposes a lifetime
ban on possessing a gun for all nonfelony domestic of-
fenses, including so-called infractions or summary offenses.
§§921(a)(33)(A)(ii), 922(g)(9); 27 CFR §478.11 (2015) (de-
fining a misdemeanor crime of domestic violence to include
crimes punishable only by a fine). These infractions, like
18 VOISINE v. UNITED STATES
THOMAS, J., dissenting
traffic tickets, are so minor that individuals do not have a
right to trial by jury. See Lewis v. United States, 518 U.S.
322, 325–326 (1996).
Today the majority expands §922(g)(9)’s sweep into
patently unconstitutional territory. Under the majority’s
reading, a single conviction under a state assault statute
for recklessly causing an injury to a family member—such
as by texting while driving—can now trigger a lifetime
ban on gun ownership. And while it may be true that such
incidents are rarely prosecuted, this decision leaves the
right to keep and bear arms up to the discretion of federal,
state, and local prosecutors.
We treat no other constitutional right so cavalierly. At
oral argument the Government could not identify any
other fundamental constitutional right that a person could
lose forever by a single conviction for an infraction pun-
ishable only by a fine. Tr. of Oral Arg. 36–40. Compare
the First Amendment. Plenty of States still criminalize
libel. See, e.g., Ala. Code. §13A–11–160 (2015); Fla. Stat.
§836.01 (2015); La. Rev. Stat. Ann. §14:47 (West 2016);
Mass. Gen. Laws, ch. 94, §98C (2014); Minn. Stat.
§609.765 (2014); N. H. Rev. Stat. Ann. §644:11 (2007); Va.
Code Ann. §18.2–209 (2014); Wis. Stat. §942.01 (2005). I
have little doubt that the majority would strike down an
absolute ban on publishing by a person previously con-
victed of misdemeanor libel. In construing the statute before
us expansively so that causing a single minor reckless
injury or offensive touching can lead someone to lose his
right to bear arms forever, the Court continues to “rele-
gat[e] the Second Amendment to a second-class right.”
Friedman v. Highland Park, 577 U. S. ___, ___ (2015)
(THOMAS, J., dissenting from denial of certiorari) (slip op.,
at 6).
* * *
In enacting §922(g)(9), Congress was not worried about
Cite as: 579 U. S. ____ (2016) 19
THOMAS, J., dissenting
a husband dropping a plate on his wife’s foot or a parent
injuring her child by texting while driving. Congress was
worried that family members were abusing other family
members through acts of violence and keeping their guns
by pleading down to misdemeanors. Prohibiting those
convicted of intentional and knowing batteries from pos-
sessing guns—but not those convicted of reckless batter-
ies—amply carries out Congress’ objective.
Instead, under the majority’s approach, a parent who
has a car accident because he sent a text message while
driving can lose his right to bear arms forever if his wife or
child suffers the slightest injury from the crash. This is
obviously not the correct reading of §922(g)(9). The “use of
physical force” does not include crimes involving purely
reckless conduct. Because Maine’s statute punishes such
conduct, it sweeps more broadly than the “use of physical
force.” I respectfully dissent.