A bad rebuttal

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.

5 Responses

  1. I sort of agree with you, but not exactly sure why it’s a bad rebuttal in response to particular hypothetical posed by Villa. Why did Villa make the example about a mistaken identity concerning a spouse if the goal was to only get a definition of reckless offensive touching. Why not make that person someone you thought you knew…an acquaintance, etc. Villa’s example makes it appear as though she is asking whether her example meets the criteria domestic abuse by making it a mistaken identity of a spouse. But I agree if all that is required to determine whether they should be allowed to own guns or not and a certain criteria of abuse is all that matters, then a clear definition of abuse should be given. However Villa’s example unnecessarily questions whether a situation is an example of domestic abuse or not. Ginsburg is right. It’s not domestic abuse. So both the example and the rebuttal to me are pointless to the discussion. That does not make Ginsburg rebuttal inappropriate to the hypothetical.

  2. She wasn’t asking if the situation was an example of domestic abuse. She was specifically questioning the definition of “recklessly”. The term could have been couched in any context since it is not unique nor explicitly defined within any domestic abuse statute. People drive recklessly. They handle hazardous material recklessly. They build things recklessly. They bring harm to other people – whether related to them or not – recklessly. The term itself is not defined nor originated within a domestic abuse context, much less one involving the particular misdemeanors in question.

    The issue here is that there is a statute which says if you are found guilty of a particular misdemeanor which involves x or y, then you can’t possess a firearm. However, the misdemeanor in question may also involve z. Notably, x, y, and z all exist independent of any one particular misdemeanor. As a result, Villa asked if an accidental pat on the back would meet the definition of z. Ginsburg then irrelevantly pointed out that the accidental pat doesn’t contain an element of the misdemeanor that has absolutely nothing to do with z.

    Look at it like this. The NHL has a rule which says you can be penalized for checking a player in a prone position. If I’m not familiar with the NHL, I might ask if it constitutes a check to brace myself against a player who is about to hit me. An irrelevant response would be to point out that my scenario has nothing to do with being in a prone position. So? I’m not asking about prone positions. I’m asking what defines a check. That’s what Villa did – she asked what defines “recklessly” injuring someone and Ginsburg responded that the question would only be valid if the reckless injury involved individuals with a domestic relationship. It’s irrelevant. A reckless injury is a reckless injury. It doesn’t matter if your spouse caused it or if it was some random drunk at your local bar.

  3. I am not arguing that this is the relevant point…I arguing that Villa’s analogy particular references a mistaken identification of a spouse which to me, in a case which does involve domestic abuse (even if it’s the reckless act that determines whether one can own a gun) Ginsberg could have thought Villa was trying to define domestic abuse. Why did Villa say nothing in response if she so obviously was trying to get a definition on reckless behavior over domestic abuse?

  4. Ginsburg may have had that interpretation, who knows, but from the quoted text above, Villa was specifically asking if the mistaken pat “[c]ould…be reckless offensive touching”. That gets to the heart of the case. The state says that recklessly causing injury satisfies its statute. The federal government says that it requires use (or attempted use) of force. The question, then, is whether or not “reckless offensive touching” is sufficiently similar to (or even the same as) use (or attempted use) of force.

    Villa was giving an example of something which might satisfy a “reckless offensive touching”, but which would not satisfy the federal standard of the use or attempted use of force. She’s saying they’re two different things in and of themselves. It isn’t important that the context is domestic abuse. We could have the same fundamental case if the federal statute said you can’t own guns if you’re convicted of any misdemeanor involving the use or attempted use of force. The question as to whether or not reckless injury might be included in the definition of “use of force” would remain.

    Why did Villa say nothing in response if she so obviously was trying to get a definition on reckless behavior over domestic abuse?

    I can only speculate, but my first guess would be nerves. I know I wouldn’t have had a response at the ready.

  5. The Court ruled 6-2 in favor of the government.


    I think the decision is entirely wrong. If the federal government wanted to include reckless conduct rather than specifically different conduct in its statute, it should have done so.

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