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

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

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 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.