USA Today reports:
WASHINGTON -- The Supreme Court struggled Wednesday with how to keep guns away from domestic violence offenders without penalizing those who are not truly violent.The obvious solution is for Congress to repeal the law, and only take guns away from convicted felons.
While the key to the debate was guns, the justices spent most of their time trying to define violence and differentiating it from actions that merely cause injury, whether intentional or not.
The differences are important, because a federal law aimed at denying guns to those with misdemeanor convictions of domestic violence relies on definitions within state laws. In 28 states and the District of Columbia, for instance, assault and battery statutes include provisions for mere touching.
That got the justices to wondering what type of domestic violence could lead to a federal conviction for possessing a gun.
"If I punch somebody in the nose, is that violence?" Justice Antonin Scalia asked.
"How about pinching or biting, hair-pulling, shoving, grabbing, hitting, slapping?" asked Justice Sonia Sotomayor.
"If the victim is at the top of the stairwell and you go, 'Boo!' and he or she falls down and is injured, is that physical force?" Chief Justice John Roberts chimed in.
And Justice Anthony Kennedy raised the specter of a photographer who says, "'Back up two steps,' so that the other person falls over the cliff. That's physical force?"
Faced with the barrage of hypothetical questions, assistant solicitor general Melissa Arbus Sherry said the law passed by Congress was intended to go after wife-beaters, not "someone tickling their wife with a feather."
That's the problem, Justice Elena Kagan said, because state laws in 14 of the 28 states don't differentiate between physical force and mere touching.
"Are you going to have a terrible difficulty prosecuting real, you know, punch-in-the-nose kinds of incidents of physical violence, because there are indivisible statutes that apply to both?" she asked.