If there’s anything that annoys me more than bad arguments, it’s people circlejerking in support of bad arguments. I was just reading up on a recent (though, as yet, undecided) Supreme Court case where the analysis did just that. (Update: The case has been ruled on. It was 6-2 in favor of the government.) The case itself isn’t overly interesting, but it gained some attention this past winter because Justice Thomas broke his rather lengthy silence to ask a few questions. To give a brief summary of the case itself: Two men were convicted of domestic assault misdemeanors that, by state law, would not preclude them from owning firearms. However, federal law says if those misdemeanors are domestic assault crimes which meet particular, limited criteria, then they can’t own guns. The men are arguing that the state law allows for broad criteria in obtaining a conviction. Essentially, federal law requires the use or attempted use of force. State law allows for recklessly injuring or physically contacting a person. It seems open and shut to me: federal law requires a particular fact, but state law allows for different facts. This means that it is possible that the federally required facts were never established, so the government ought to lose this one. It looks like things aren’t going to go that way, but then I’ve yet to get Obama’s nomination to fill Scalia’s seat.
In reading about the case, I came across this little tidbit about Justice Ginsburg:
One last notable point: anyone who suggests that Justice Ginsburg may be slowing down, should read the last two pages of Villa’s argument. Villa suggested what seemed like a difficult hypothetical: what if she “came up to somebody who I thought was my husband and I patted him on the back and said ‘hi, honey,’” but it wasn’t him? Could that be a reckless offensive touching? But when Justice Sotomayor appeared momentarily slowed by this example, Justice Ginsburg incisively noted that “there isn’t a [domestic] relationship [as] the statute requires.” “That is true,” conceded Villa, and she quickly reserved the remainder of her time.
What a hugely irrelevant rebuttal. It doesn’t matter if the statute requires pigs to fly out of someone’s butt. The issue at hand is what defines “reckless offensive touching”. In this case, it was asked if a mistaken pat on the back would meet the definition. That question went unanswered due to a red herring: Ginsburg insisted on defining “reckless offensive touching” within a particular context despite the phrasing existing independent of said context. Moreover, the question can easily be changed to fit Ginsburg’s illegitimate objection: What if someone accidentally pats their son on the back because he looks so much like her husband? That would satisfy the domestic relationship required of the statute. (I emphasize statute here because no relationship is required of the argument.) Could we answer the question then? According to Ginsburg, the answer is yes, though, how the domestic relationship would play any role in such an answer is unclear.