United States v. Hayes - Oral Argument

ORAL ARGUMENT OF NICOLE A. SAHARSKY ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We'll hear argument next in Case 07-608, United States v. Hayes.

Ms. Saharsky.

Ms. Saharsky: Mr. Chief Justice, and may it please the Court:

Respondent's conviction for battering his wife is a misdemeanor crime of domestic violence primarily for two reasons: First, the statutory text is most naturally read that way. Second, a contrary reading would defeat Congress's purposes.

Nine courts of appeals have determined that the text does not require a domestic relationship to be an element to the predicate offense. That's because the statute's text uses only one element, using the singular word "element," which relates to mode of aggression. It then introduces a new concept related to domestic relationship, using a comma and the word "committed."

The word "committed" naturally modifies the word "offense." In common usage, a person commits an offense; he doesn't commit a use or attempted use of physical force.

Under Respondent's reading of the statute, when it was enacted it would have become immediately a dead letter in two-thirds of the States, and it wouldn't have any application to the Federal Government. And --

Justice Scalia: Well, Respondent says that may be because a lot of people in Congress wanted it to be a dead letter. They would have wanted the whole thing to be a dead letter. There are a lot of people who didn't like this statute because it was a gun control statute.

Ms. Saharsky: But Congress did act this statute, and this Court presumes two things: First --

Justice Scalia: Well, if it's a compromise with the people who wanted no statute at all and you come out with a statute that covers one-third of the States anyway, I mean that's, you know -- that's the deal.

Ms. Saharsky: There was a compromise made, but it wasn't with respect to whether there needed to be a domestic relationship element. It was with respect to how violent the offense had to be.

Justice Scalia: How do we know -- how do we know that?

Ms. Saharsky: Well, if you look at the statute's drafting history, there were two versions considered. One used the term "crime of violence" to discuss how violent the statute had to be, and then the second substituted in the new language: "...has as an element the use or attempted use of physical force or threatened use of a deadly weapon."

Justice Scalia: But it also substituted this structure that we are -- that we are discussing today. Didn't that come in at the same time?

Ms. Saharsky: The --

Justice Scalia: So, why -- why say it's only the former provision that was the compromise and not the addition of this later language?

Ms. Saharsky: Both the original structure and the statute as enacted had the same structure in that they had a "committed by" clause that modified the word "offense."

Now, it's true that the use -- "has as an element language" that came in added some additional structure in terms of the Romanette (i) and the Romanette (ii), but that all came in because there was a discussion about how violent the offense had to be, both -- in the original statute that was considered, you have an offense committed by a certain person, an offense of a certain type committed by a certain person, and in the statute that was enacted you have an offense of a certain type committed by a certain person. Now, Congress put more detail in, in terms of what that certain type of offense is. This has as an "element" language, but it just didn't go to domestic relationship.

And to get back to one of the earlier points in your question, you know, this Court presumes when Congress passes a statute two things are true: First, it knows the legal backdrop on which it enacts the law; and second, that it's presumed that its law is going to have effect. And that should be especially true here where Congress was dealing with a serious nationwide problem of domestic violence using firearms. Congress

Justice Ginsburg: The suggestion was that Congress may have wanted to give an incentive to States to have special domestic violence statutes instead of punishing domestic abusers under a generic battery statute.

Ms. Saharsky: I don't think that makes sense for two reasons: First, because when Congress wants to do that, it uses its spending power to give the States incentives to do things like that, and it did that in the VAWA enactment in 1994 and in VAWA re-authorization in 2005.

And, second, because if you believe what Respondents suggest, you would have to think that a Congress that was very concerned about the powder keg situation of a domestic offender with a gun would want to exempt domestic offenders who have proven that they are willing to hurt family members in two-thirds of the States, a Congress that was presumed -- that was concerned with the problem of domestic violence would enact a statute that would apply so infrequently, to at most these 17 States, and wouldn't apply at all to Federal offenses, making that "misdemeanor under Federal law" language superfluous.

Chief Justice Roberts: Counsel, I understand your objection to the reading that your friend would have us adopt, but you have the same sort of problem. I mean, you've got a -- if it reads the way you would have it, then the word "that" after "an offense that" doesn't quite work, and have you to add "is" before "is committed," if you're going to keep the "that." So it seems to me that this doesn't work grammatically either way.

Ms. Saharsky: I don't think that that's right, with respect, Your Honor, because you have an offense that is of a certain character committed by a certain person.

Chief Justice Roberts: But you've changed the word. You read it as if it says "an offense that committed." So either the "that" is out or you've got to add the word "is."

Ms. Saharsky: I think that the word "offense" is twice modified. There is an offense that is of a certain character and there is an offense committed by a certain --

Chief Justice Roberts: Okay. You use the word "that" in the first example, but you skip the word "that" in the second. "That" appears in the line and then comes (i) and (ii). In other words, that modifies both of them, and you're reading it that it's an offense committed, and yet under the statute it has to be an "offense that committed." So you've either got to leave "that" out the second time but not the first or you've got to add the word "is" as it appears in (i).

Ms. Saharsky: What I'm suggesting, Your Honor, is that the "that" refers to everything that is in Romanette (i) and (ii) up to the break with "committed by." So that it is an offense that is a misdemeanor and has as an element "committed by." You know, these -- these two different clauses both modify "offense," just as a grammatical matter, not looking at this Romanette (i) and (ii), but just looking at that sentence.

Chief Justice Roberts: Romanette?

Ms. Saharsky: Oh, little Roman numeral.

Chief Justice Roberts: I've never heard that before. That's -- Romanette.

(Laughter.)

Ms. Saharsky: If you just look at this as a sentence, you have "an offense that is a misdemeanor and has as an element committed by." Now, that "committed by" clause, it could have come after "offense" or it could be in the place where it is now. There are just these two different ways that offenses qualify.

Justice Scalia: You can't. I mean, you have the "that," and the "that" applies to both (i) and (ii), and this is part of (ii). I think you've got to either say "that committed" or -- or put in an "is" -- "that is committed." It just doesn't parse, and that lack of parsing is much worse than the one that you -- you point to in the other side's reading. Yes, it's not usual to talk about committing a use of force, but it happens sometimes. It's -- it's not the most elegant language, but there are many examples of such usage that have been brought forth by the other side and by some of the amici. So they have something that -- it's not elegant, but people have spoken that way. Nobody speaks the way you want us to speak: "An offense that committed by a person or an offense that" -- "committed by a current or former..." Nobody talks that way.

Ms. Saharsky: Two responses.

Justice Scalia: Nobody.

Ms. Saharsky: Two responses, Your Honor.

First, the "committed by" language refers back to "offense" and the "that" is just part of this -- this first clause, but -- and we believe that the Government's reading is the most logical reading. And think of it this way: You know, Respondent agrees that if there were a hard return before the "committed by" language, that it's clear -- that it would be more clear that the Government's reading is correct.

Justice Scalia: I wouldn't agree with that.

You'd still have the "that" up above. You would have to have a hard return and take out the "that" or -- or that (A) is a misdemeanor, "has as an element" and then a hard return, and you have to add "and is committed."

You still have to add language besides the hard return.

Ms. Saharsky: With respect, Your Honor, we think this can be read as all one sentence. But just to make my second point, which is: I think that it would do much more violence, Respondent's reading of the statute, than you suggest because you're talking about treating the singular word "element" as plural. You're talking about ignoring the comma that separates the "has as an element" section from the "committed by" section, and then you're talking about taking what even the linguists who filed a brief in this case essentially in support of Respondents say is a very weird usage of "committed."

Chief Justice Roberts: How do you -- I'm sorry. I'm not following why "element" is singular.

The argument on the other side, I understood, is that the element is the use of physical force committed by a current or former spouse. So "element" is still singular. I -- maybe I'm missing something. What change would you have to make to the word "element" to adopt their reading?

Ms. Saharsky: We think that you'd say -- you'd have to say "has as its elements" to suggest that you would take two very diverse concepts and make them both required elements of the underlying offense.

There are two concepts here: One is how violent the offense has to be, and then there's the second concept, which is a class of defendants, and that's a very different concept. But if you just see the singular "element," "has as an element," and then you see, oh, okay, it has to be violent.

Chief Justice Roberts: Well, but I thought the whole point of this was to get at violence committed by a family member, and if that's the critical element, you don't have to have two different elements, "violence" and then "committed." It's violence committed by a family member.

Ms. Saharsky: Well, with respect, Your Honor, we think that because Congress broke these up into these two different clauses -- one that relates to violence and then a separate clause that's introduced by "committed by" where "committed" naturally modifies "offense" -- that it was treating -- that these were two separate requirements. And you're right that Congress was trying to get at the problem of violent domestic offense, and if it was doing that it would make no sense at all for Congress to -- to have enacted a statute that would such extremely limited application. And, of course, Respondent's reading would make the "is a misdemeanor under Federal law" superfluous.

Chief Justice Roberts: If we think that there are two awkward readings, yours and your friend's, and both of them require surgery, don't we resolve that under the rule of lenity?

Ms. Saharsky: No. The rule of lenity says that there needs to be a grievous ambiguity after this Court seizes aid -- any aid which can be derived from the tools of statutory interpretation. So even though we think that the text here is most naturally read in the Government's way, every other indicia of meaning here points in favor of the Government's interpretation.

Justice Kennedy: What -- what -- what's been the underlying rationale for the rule of lenity, which is a rule I think we should apply with great caution? But if we think -- what's the reason for the rule of lenity?

Ms. Saharsky: I think one of the -- the main concerns is providing fair notice of what's illegal.

Justice Kennedy: Fair notice. It -- it -- it seems to me that if I were counsel practicing criminal law in the private sector, and I negotiated a plea for simple assault, but there was a spouse that was involved, and then I walked down the courthouse step with my clients, said we got a good deal, and incidentally, all guns in your house must immediately be surrendered to other people, you must take them all out, you may never hunt, you may never possess a gun.

And under your view, if I don't say that I'm guilty of, it seems to me, serious malpractice. I just don't see that there is notice to the legal profession.

Ms. Saharsky: Well certainly, Your Honor, we think that the statutory text is clear, and that's because people are presumed to know the law. Certainly a person who has beaten his wife knows that --

Justice Kennedy: Well, but the rule --

Ms. Saharsky: -- the assault he was convicted of is one against his wife.

Justice Kennedy: No. Where the context is, we are asking why the rule of lenity and the rule of lenity is to ensure notice. And it seems to me this is a classic case where there has to be notice. You could come back and say that even if the statute had been written as to apply specifically to domestic crimes, a lot of attorneys wouldn't have had notice on it when it was an omnibus budget bill added at the last minute.

Ms. Saharsky: Your Honor, it was at the time that this statute was enacted the case that very few States had statutes with a domestic relationship requirement, only 17. And to be clear, in those 17 States those all covered more domestic relationships than the Federal statute. They covered things like dating relationships, violence involving grandparents, etcetera. So that even from the face of your State conviction, you wouldn't be able to just match it right up with this Federal offense. And the fact that those 17 States -- A, that there was such a small number; and B, that those States cover a different range of domestic offenses --

Chief Justice Roberts: There was a small, a small number. Were they populous States?

Ms. Saharsky: I think it was a range of States. I don't think I could say it was all the most populous or all the least populous States.

Chief Justice Roberts: California, New York?

Ms. Saharsky: You know, I'd have to look at the list. I think that California came in later -- no, California did have one statute; New York did not.

But you know, one thing that's worth noticing in this case is that you know, the Senator, Senator Lautenberg, who was the sponsor of this legislation, was from New Jersey; and other Respondent's reading of this statute it wouldn't have even applied to offenses committed in New Jersey. And that seems like an odd thing to believe. And of course, it wouldn't have applied to Federal offenses despite the --

Justice Stevens: May I ask -- may I ask, to make sure I understand the alternate reading. Is it your view that the statute does mean the same as if, after the words "deadly weapon," there had been inserted a parenthetical (iii), closed paren, "is committed by"? If -- now there is the element of "attempted use of force" is one, is the second requirement; and the third requirement is that it be committed by a current or former spouse.

Ms. Saharsky: Yes. I think --

Justice Stevens: So your -- your reading -- I'm just following up on the Chief Justice's question -- requires us to assume that Congress really intended there to be a triple "i" as well as a double "i", and the triple "i" would have begun with the verb "is."

Ms. Saharsky: I think that that's one way of doing it, but I don't think that you have to do that, because if you look at the structure of this sentence --

Justice Stevens: But it is true, is it not, that if you did do it that way, it would have been a lot clearer than it is now?

Ms. Saharsky: There are ways that Congress could have made its manifest intent even more clear. It could have added that Romanette (iii); it could put a hard return before "committed by." But if you look at the effect that the statute would have, if you read it Respondent's way, I don't think that we can reasonably expect that Congress -- a Congress that wanted to get at the serious nationwide problem of domestic violence using firearms, would have wanted to enact a statute that would have such limited effect.

Justice Scalia: I want to follow up on Justice Kennedy's inquiry about the rule of lenity.

Don't you think the rule of lenity is particularly important when you're dealing with conduct that is not malum in se? I mean, to say that, well, we are not going to apply the rule of lenity to a statute that posits an increased sentence for kneecapping or for some violent conduct, the person knows he shouldn't be doing that stuff anyway. But this imposes a -- a -- a penalty for conduct that no one would think is unlawful.

This fellow is -- wasn't it his father's gun he was taking to sell at a gun show or something?

Ms. Saharsky: There were five firearms.

There was one found in his home, three that he transferred and one that he sold.

Justice Scalia: Well, he could have ten, couldn't he?

Ms. Saharsky: Well, we would hope that he wouldn't in this situation. But --

Justice Scalia: Why?

Ms. Saharsky: Because he has been convicted of a serious violent offense, and I think that's --

Justice Scalia: But -- but for this language that you say makes his owning of a firearm unlawful, it wouldn't be unlawful at all, would it? He would have no reason to think he couldn't have a firearm.

Ms. Saharsky: I think that a person who has been committed of a violent offense should be on notice that their procession of firearms --

Justice Scalia: Should be. Is that right?

Ms. Saharsky: Yes.

Justice Scalia: A misdemeanor -- a misdemeanor offense. And -- and -- and he should suspect that because he committed a misdemeanor, he cannot have a firearm?

Ms. Saharsky: When --

Justice Scalia: I don't think anybody would assume that. Indeed, there are some who assume that you -- you cannot prevent the owning of a firearm for a mere misdemeanor, as opposed to a felony.

Ms. Saharsky: I understand that concern.

We are not talking about mere misdemeanors here. We are talking about a specific category of violent misdemeanors, Section 929(g)(9); specifically --

Justice Scalia: Make it clear.

Make it clear, so that when -- when his lawyer pleads to the offense, he doesn't have to read in a little (iii) where there is not a little (iii). And he -- well, you did not plead guilty or you are not accused of the offense of using violence against a family member. You're just -- just accused of -- of using violence, a misdemeanor.

Ms. Saharsky: Two thoughts on that, Your Honor. The first is, you know, at the time that this statute was enacted almost all of the States except for this small number prosecuted offenses that were domestic disturbance offenses like the one in this case under general assault and battery statutes, and even the 17 States that have those with the domestic relations, offenses with the domestic relationship requirement, still prosecute them routinely as assault and battery under those general statutes.

So I think a person -- A, an attorney who handles those kind of cases would have knowledge of that law; and B, a person who has committed a serious violent offense like Respondent's previous offense in this case should be on notice that his possession of firearms might be regulated.

Justice Scalia: What -- a serious violent offense. Are there -- is there felony assault and battery?

Ms. Saharsky: Yes.

Justice Scalia: And this was misdemeanor assault and battery, wasn't it?

Ms. Saharsky: Yes, that's right. I mean, I really --

Justice Scalia: So it's not that serious an offense. That's why we call it a misdemeanor.

Ms. Saharsky: Well, I mean, certainly the offense is this particular case was serious. The charging document reflects that Respondent hit his wife all around the face until it swelled out, kicked her all around her body, kicked here in the ribs --

Justice Scalia: Then he should have been charged with a felony, but he wasn't. He was charged with a misdemeanor.

Justice Ginsburg: Wasn't the -- wasn't the statute responding to just that problem, that domestic abuse tended to be charged as misdemeanors rather than felonies? And it was that fact that the Senator was responding to when he included misdemeanor. The whole purpose of this was to make a misdemeanor battery count for the statute's purpose.

Ms. Saharsky: That's exactly right, Justice Ginsburg. All of the discussion of this in Congress said we need to have a zero tolerance towards people -- zero tolerance policy towards people who are -- have proven that they are willing to commit violent acts against family members; and we already have a statute that prohibits felons from possessing firearms, but we know that sometimes these domestic offenses get charged as misdemeanors. And Senator Lautenberg specifically said in the legislative record they are often charged as offenses like assault and battery, and we need to get at these offenses because these people should not have firearms. They should not put their families in that type of powder keg situation, and they -- we should not be putting police in that type of situation, where police who respond to a domestic disturbance call like the 911 call in this case are put in a dangerous situation with a person -- an emotionally charged situation -- who would have a firearm.

One other point that I wanted to make with respect to your question, Justice Scalia -- and this is not with respect to how this case should be resolved, but just as a practical matter -- that the VAWA 2005 amendments do require States, for a condition of their grant funding, to have a judicial policy that gives notice for offenses like assault and battery that a person would not be able to possess a firearm.

And the reason that they are doing that is not because, you know, as a constitutional matter we think that they need to, but because they really -- Congress just really wants to keep firearms away from people who have shown that they are willing to hurt family members in this way.

Now, I talked a little bit in the beginning of argument about how really every -- every indicia of meaning in this case -- and we do look to -- to each of those different interpretive tools before we would invoke the rule of lenity -- points in favor of the Government's construction. First of all, you've got the text, and I think we've -- we've covered those arguments. But just as a practical matter, this statute would have an extremely limited effect if it didn't -- if it were interpreted as Respondent suggests.

The language with respect to Federal misdemeanors would be superfluous because the way that Federal offenses like domestic assaults on Army bases are charged is under a general Federal assault statute.

There isn't one that's specific to domestic violence.

So Congress would have put this "misdemeanor under Federal law" language in there, and it -- it would have immediately had no effect either. You know, the --

Chief Justice Roberts: Well, it seems there is no Federal misdemeanor that covers this particular type of assault, in other words?

Ms. Saharsky: There is -- there is a general Federal assault statute.

Chief Justice Roberts: Right.

Ms. Saharsky: But it doesn't have a domestic relationship requirement, and that's the problem. You know, we also look to the drafting history just a bit, and I -- I think that, you know, every indicia -- every indication in the drafting history, both if you compare the first version of the bill with the statute that was enacted and the discussion relating to it, shows that this language "has as an element," which really only intended to get at how violent an offense had to be, it -- it was never intended to get at any kind of domestic relationship requirement. And, of course, the -- the sponsor --

Justice Scalia: I think -- I think that people are governed by the law that is passed, not by the law that Congress intended to pass.

Ms. Saharsky: That's exactly right, Justice

Justice Scalia: So, really, if a lawyer reading this would not think that it applied, I don't care what Congress intended. If -- if the law doesn't say that, the person is not governed by it. You think a person could be governed by it despite the fact that it doesn't say that because Congress intended it?

Ms. Saharsky: Of course not, Justice Scalia.

Justice Scalia: Of course.

Ms. Saharsky: We look to the text first, but we also look to other indicia -- many of us also look to other indicia of Congress's intent. And some of those indicia include things like a comparison of the drafting history and Senator Lautenberg's statement, which is directly on point here, which says that offenses like assault and battery would be covered.

This is a -- a powerful tool.

Chief Justice Roberts: Well, how does that relate to the rule of lenity? I suppose, to get back to Justice Kennedy's point, you're saying that the lawyer would not only be obligated to read this, but in advising his client would be obligated to go back and read the drafting history and the legislative history.

Do we really use those types of materials to trump the -- the rule of lenity?

Ms. Saharsky: This Court has in -- in multiple cases looked to the fact that the statute, for example, would have such a narrow, limited purpose, in addition to the statute's text, to say, you know, we can't believe Congress would expect that purpose --

Chief Justice Roberts: So the lawyer advising his client in the typical assault case is supposed to know at the time that only 17 States had this type of provision?

Ms. Saharsky: I think it was well known at the time that these offenses, even in the 17 States that had the domestic relationship element, were commonly prosecuted as assault and battery offenses. And this Court has -- for example, let's consider the Taylor case, where this Court was considering the example of burglary and trying to define: Should we pick this narrow, common-law definition of "burglary," or a more expansive definition of "burglary"? And, aside from looking at the legislative history, there is a separate section of the Court's opinion where you said: Look, if we took this narrow, common law definition of "burglary," it would apply basically nowhere and we just can't think that Congress intended that.

And you didn't go right to the rule of lenity there. You looked at, for example, how that frustration of congressional purpose would occur and the problem that that would cause.

If there are no further questions, I'd like to reserve the remainder of my time.

ORAL ARGUMENT OF TROY N. GIATRAS ON BEHALF OF THE RESPONDENT

Chief Justice Roberts: Thank you, counsel.

Mr. Giatras.

Mr. Giatras: Mr. Chief Justice, may it please the Court:

The fundamental flaw in the Government's argument is that it describes a statute that Congress considered but did not pass. In the statute's final version Congress defined the "misdemeanor crime of domestic violence" to require that the predicate offense have as an element a domestic relationship between the offender and the victim.

And the Government's reading ignores the legislative compromise that led to the contested language; and, if adopted by this Court, would rewrite the statute and hand one side the legislative victory that they were unable to achieve in Congress.

Justice Scalia: Well, wait. You say that that was the compromise. I don't know that you have any evidence to -- to show that that was an intentional -- an intentional alteration made in the House of Representatives. Do you? I mean --

Mr. Giatras: There is nothing that speaks to the words in the House of Representatives in the Congressional Record, Your Honor, but their inaction and the lack of words speak very loudly. And it was -- from March of 1996, when the legislation was introduced, and then it went over to the House after passing significantly in the Senate, it was stalled, and it was stymied, and it did not move.

As a matter of fact, it had to at one time be taken from a -- and put into the stalking bill and then removed from the stalking bill and replaced back in then to a postal bill, which was then modified into the appropriations bill.

Justice Scalia: But the other side says that the reason that was the case was that they objected to the fact that -- what was its language -- the -- the old version did not say a "misdemeanor crime of domestic violence." It was -- it was broader.

Mr. Giatras: It certainly was broader, but there was nothing -- and there was no one that spoke in the House of Representatives on that matter. And there was only one -- the principal author of the legislation, the sponsor, spoke in the Senate. And it was not until the eleventh hour on September 28th of 1996 that this entire change was made.

Justice Ginsburg: I thought it was that the use of force -- to make it clear is a misdemeanor -- had to involve a use of force, and that wasn't clear before, right?

Mr. Giatras: The --

Justice Scalia: Where -- where is the earlier version? Do we have the earlier version anywhere --

Mr. Giatras: Yes.

Justice Scalia: -- in the materials in front of us?

Mr. Giatras: Appendix B, page 5a of the red brief -- I'm sorry. It's page 4a of the red brief.

Justice Scalia: Thank you.

Mr. Giatras: I apologize.

Justice Stevens: While we pause, can I just ask you one question to make sure I understand the two -- two different positions? Your view of the subsection ii is that the meaning you attributed to it is -- would be exactly the same if you left out the word "committed"? In other words, it seems to me under your view the word -- either the word "committed" or the words "committed by" is superfluous?

Mr. Giatras: No. That is part of the element -- the one element that is required.

Justice Stevens: Why would you need that in there if the statute means -- if the element is the use of force by a family member? Why do you have to put in another verb, "committed"?

Mr. Giatras: Well, because that's who -- that's who it would -- that's who it would address to.

And that would be with respect to -- when you look at the definition that's set forth, it was to change from the original -- original --

Justice Stevens: Well, I'm not interested in changes. I'm just interested in the text before us.

And it seems to me that your reading of the statute is exactly what the statute would say if it did not include the word "committed."

Mr. Giatras: I -- I don't know, Justice. I don't believe so, though.

Chief Justice Roberts: Well, I agree with Justice Stevens. Read it without the word "committed."

It not only has the same effect, but it's more natural, because it's "use of force by a current or former spouse," as opposed to "use of force committed by."

Mr. Giatras: It would still include -- it would still include both attributes into the one element even if the word "committed" were removed from double ii, yes. I'm -- I'm sorry about that.

Justice Breyer: As I read this old one -- as I read the first one, Senator Lautenberg put in the language, and his language in the first one was to say I'll tell you a group of people who shouldn't have guns.

The people who commit a crime of domestic violence.

Now what's that? In the statute he says it is a misdemeanor crime of violence committed by a person in a family relation with the victim.

Then he says after, I changed that language a little. I'll tell you why. Because somebody told me misdemeanor crime of violence is too broad. It could include cutting up a credit card. So I'll define it more specifically.

And he defines if more specifically to say that it is a crime that has as an element the use or attempted use of physical force or threatening people with a weapon. End of the matter.

They substitute those words and they did another thing the drafter as he breaks out the thing it says: It is a crime that is a misdemeanor and, you see, and that's where the problem is, because if you put in a "that," then you have to have an "is." So he left out the "is." Okay.

So I say what did Senator Lautenberg want with these words? I see. How did he change it? I see.

I can't find a word that supports the reason that you have. Now, maybe they are there. That's what you'll tell me.

And then I say it's the fine language consistent with what he wanted. It requires putting in an "is." I don't find that too awful. Okay. That's your argument against you. What is it? Your argument to rebut that.

Mr. Giatras: The legislation that the Senator introduced was not the legislation that was passed by Congress. And, Justice Breyer, it is very clear from the statutory and legislative history in this case from -- you just take up through September 28th of 1996, that the sponsor of the legislation decries with respect to the staunch opposition that was in the House, and the fact that his bill was going nowhere. This may have been his intended purpose with respect to what was introduced, but it was then the will of Congress with changing --

Justice Breyer: That's the conclusion.

You're reaching that conclusion. What I need from you is something that would tell me, no, Congress didn't just want to clarify in the way Lautenberg said. What they wanted to do was, in fact, restrict the scope of this so it only applied in 17 states. Okay. I'm open to that argument. It could be a good argument. Just point me to the things that suggest that that is what Congress wanted to do, rather than by what Senator Lautenberg said.

Mr. Giatras: By take -- by taking a look at the final passed legislation.

Justice Breyer: No, I've got the words. If the best you can do is point me to the words of the statute, I'll take that into account. I'm asking the question to see if there is anything at all more?

Mr. Giatras: Other than the fact that the structure of the statute also changed, and the structure of the statute changed --

Justice Breyer: I don't want the text. I want something for my purposes.

Mr. Giatras: What we have --

Justice Breyer: Okay.

Mr. Giatras: And what is problematic here, Justice, is that the legislative history does not speak on this particular matter. It is silent on this.

Justice Scalia: Did this structure come from Senator Lautenberg?

Mr. Giatras: No, it did not.

Justice Scalia: Where did it come from?

Mr. Giatras: It is -- it has to be presumed that it came from -- we don't know exactly where, but it came out of the House, and the House of Representatives on September 28th --

Justice Scalia: It came out of the House version. The House version had this which was different from the Senate version that Lautenberg was responsible for?

Mr. Giatras: No. This was a version that was passed in the Senate as the "as introduced" language. It then went and it was sat -- it sat in the House of Representatives for a long period of time.

It was not until September 28th, prior -- right prior to the time that the budget bill had to have been sent back to -- to the Senate to be voted on and then proved by the President to continue the government to run. And this bill was changed then in the House of Representatives on -- at the 11th hour --

Justice Scalia: So this language came from the House?

Mr. Giatras: Yes, it did.

Justice Scalia: Excuse me, Senator Lautenberg would not have been the drafter of this language.

Mr. Giatras: The -- Senator Lautenberg does not disagree that he came to an agreement on this language.

Justice Breyer: I'm sorry. Are you saying that Senator Lautenberg did not change the words "misdemeanor crime of violence" to the words "use of physical force" or "threatened use of deadly weapon"? That's what he got up on the floor of the Senate and said that he wanted to change.

Mr. Giatras: Justice, as this Court has articulated in Allapattah, that sometimes there can be a strategic manipulation to secure results.

Justice Breyer: I'm not -- we're in -- the question specifically is where did the words come from? I thought that the words came from Senator Lautenberg.

The reason I thought that is because he got up on the floor of the Senate and said that's what he did.

Now, if you're telling me they came from a different place, what is there in anywhere? I'm open to hearing it, but I couldn't find anything that said they had come from a different place.

Mr. Giatras: They would have come from the House of Representatives.

Justice Scalia: What do you mean would have? Did it language come over to the Senate from the House or not?

Mr. Giatras: Yes.

Justice Breyer: So the -- the -- the language on physical force came from the House? That's what you're saying? I'm just trying to be clear.

Mr. Giatras: Threatened use of --

Justice Breyer: It might have. I'm not criticizing. I want to know.

Mr. Giatras: The use or attempted use of physical force or the threatened use of a deadly weapon language, including the words "misdemeanor crime of domestic violence" came over from the House.

Justice Scalia: This very form that was ultimately enacted was the form that came over from the House to the Senate?

Mr. Giatras: Yes, Your Honor.

Justice Breyer: Making progress. And you're saying that in the House there were some people who didn't want it to extend to beyond 17 States?

Mr. Giatras: Yes, Your Honor.

Justice Breyer: And how do we know that?

Mr. Giatras: Well, by the mere fact that they -- we don't have them speaking to it, because there was no actual congressional record of them speaking to it or someone taking to the floor in the House of Representatives. It's absolutely silent.

We have to, instead, go back to what Senator Lautenberg was saying on the floor of the Senate during this period of time, where he made very clear that what was occurring to his bill that it was dying, that it was being killed and it was being gutted in September of -- early to late September of 1996, the author says that his bill is being gutted and it's dying, and that there are significant staunch opposition from certain forces in order to limit the bill.

Justice Alito: Other than a desire to weaken this bill as much as possible, can you think of any reason why Congress would have drawn the distinction that you're drawing between States that have specific statutes relating to domestic violence misdemeanor statutes and those that don't?

Mr. Giatras: I don't think we can speak why certain States did or did not or why Congress would only want there to be 17. But, certainly, there is nothing -- and there is nothing in the legislative history to express other than the fact that it was the effect of a judicial -- of a legislative compromise.

Justice Ginsburg: What sense would it make for Congress to say take two abusers? The conduct is identical. And in state A there is one consequence to bar on the possession of guns, and state B there isn't for the identical conduct, why would Congress want these two different results?

Mr. Giatras: It was -- the language that was ultimately agreed upon by the entire Congress, Your Honor, was as a result of a compromise. And -- that --

Justice Scalia: I suppose it gives greater assurance of what exactly the prior conviction was. If there is just a prior conviction of misdemeanor violence, you have to go back, I suppose, and look at the conviction, look at the testimony to find out whether indeed it was domestic violence. It was just a general -- general assault statute. You don't know it was committed in the home or not.

Whereas if you're -- if you're convicted of the crime, the misdemeanor of violence against a spouse or a relative like this, you know exactly what the -- what the crime is?

Mr. Giatras: You will know that.

Certainly. And by even the -- the text of the statute, it changes from a crime of violence to the definition of misdemeanor.

Justice Scalia: I understand that -- that when someone purchases a firearm, they have to affirm, check a box, I have been convicted of a crime of domestic violence. Is that how it reads? And that goes to, you know, to the Federal Government and they check the records of convictions.

How -- how would your client check that? I have been -- I have been convicted of a crime of domestic violence, if he had been convicted of assault and the assault happened to be domestic assault would -- would he be perjuring himself if he said no?

Mr. Giatras: There are -- there are cases that are prosecuted in that manner where also lying on the form gives charge -- gives rise to a Federal offense. And the ATF regulation is -- reads the statute slightly -- reads the statute -- it reads the statute significantly different and puts in parentheticals such as assault and/or battery and also puts in parentheticals how -- they use the word "was committed" in a -- in a third subparagraph.

Justice Scalia: Does -- does it make clear whether the offense has to be domestic -- a domestic violence offense or whether an ordinary assault offense will qualify if as a matter of fact it was domestic?

Mr. Giatras: Well, it -- it -- the ATF regulation denotes that you should even put it down if it's going to be an assault and --

Justice Scalia: I don't understand what you've said.

Mr. Giatras: The ATF regulation is in appendix F to your red brief, page 12 A.

Justice Scalia: Oh, and it's drafted the way the statute should have been drafted. Isn't that interesting.

In other words, it breaks out the "was committed by a current or former spouse" and makes that a separate provision, rather than a part of the element "use of attempted force against a family member."

Mr. Giatras: That is correct, Your Honor, but that --

Chief Justice Roberts: It's drafted the way it should have been if your friends are correct.

Mr. Giatras: That -- it's drafted the way -- it's drafted the way the original sponsor of the legislation would have wanted it to pass Congress, Your Honor -- or Chief Justice.

Justice Kennedy: The -- the -- the statute uses the word element in the term singular. It seems to me that although this statute is a mess anyway -- (Laughter).

Justice Kennedy: -- that that -- that that doesn't particularly help you. Elements usually refer to each component of the actus reus -- you entered a dwelling with a weapon. You would say "elements" for that, wouldn't you? And it seems to me under your interpretation the statute should say "elements."

Mr. Giatras: Well, I think that the -- the best advice is to take that of judge Sentelle's dissenting opinion in Barnes where element or elements is insignificant, the plural of it. Instead it's what is the element as opposed to how many elements there are.

Justice Kennedy: Well, I mean when we are gasping for straws I'm not sure anything is insignificant.

Mr. Giatras: Well -- and in this particular matter, when in seeking -- if after seizing everything from which the aid can or may be derived, I think we can only guess as to Congress's intent.

Justice Ginsburg: But suppose this statute, the one that was enacted, had the word "if" before "committed." Would that then convey the meaning that the Government is urging? Has as an element use of force, comma, "if" committed.

Mr. Giatras: Well, that may make it slightly even more vague, Justice, because then it's whether or not it's even part or parcel or whether it is or isn't part of it. Here at least what they --

Justice Ginsburg: "If committed" would break from "use of force." The element is the use of force, but then the crime would have to have been committed by a current or former spouse; so wouldn't an "if" separate what is the element, that is, use of force?

Mr. Giatras: I don't believe that to use the word "if" changes our position, Justice --

Justice Scalia: Well, sure it would. Just as an "is" --

Mr. Giatras: Well, "was," if --

Justice Scalia: I mean, if you want to add words you can add "if," you can add "as is," you could rewrite the statute a lot of ways.

Mr. Giatras: Well -- and one way is that this statute denotes that there is a part (c), of which there is no part (c). This statute also lacks -- even though it's very insignificant in and of itself, by itself -- it lacks a period at the very end of double i.

Again, no one particular point can be -- would say that we would allow that punctuation to overcome the purpose, or overcome the text, but when taken as a whole, when you have the text and an inartfully drafted statute that references sections that don't exist, that has grammatical errors in it and that leaves things up to the reader to have to decide whether something is involved or not involved; and you also then have a lack of sufficient congressional record, then I believe that it certainly is favored to look at the rule of lenity in this case. I do want to also --

Justice Alito: Do you really think there is a notice problem here? If you had been advising Mr. Hayes after he was convicted of this misdemeanor, and you read this, would you say well, you know, you're -- it's a good thing that you were convicted of this in West Virginia, where there isn't a specific statute targeting domestic violence, because it doesn't cover you. If you had been convicted in another State under a specific domestic violence statute then you wouldn't be able to possess firearms but you're home free because of the nature of the statute in your State?

Mr. Giatras: I believe it would have been -- in 1993, '94 time period, it would have been very difficult -- it would have been, it should have been very easy to -- to advise Mr. Hayes with respect to that issue. Certainly. That he would not have lost his rights at that point.

Thereafter when Congress passed this statute, then I believe that -- does it become a little murky? It probably does become a little murky. After you have the hindsight of being able to one, take a look at the legislative record if that's the necessary, and/or consider that, and/or if you take a look at the ATF regulation, the only problem is the ATF regulation takes it -- takes us back in time to what they would have -- what would have been or what they would have liked it to have been as opposed to what was actually legislated.

Justice Ginsburg: But if -- counsel advising Mr. Hayes surely would have looked at what was the uniform position in all the circuits. All the circuits that had this question before the floor read it the way the Government is urging. So counsel I think would have been highly irresponsible to advise Mr. Hayes that he would be home free, simply because his own State didn't have a separate domestic violence statute.

Mr. Giatras: And Justice Ginsburg, the only reason I say that in this particular case, is because Mr. Hayes was in 1993 -- and was pled in 1994, which was prior to enactment of this statute and/or any of the circuit court opinions. So that was my -- that was the reason for my answer that in Mr. Hayes' case it would have been very simple and no one would have looked to those issues because those didn't exist.

To bring to the -- to answer one of the questions from the Chief Justice with respect to what States may have had these laws in 1996, on page 24 of the Government's merits brief, the footnote number 9 denotes -- footnote number 9 denotes the States, which include Alabama, Kansas, Missouri, Nebraska, Maine, North Carolina and the like. Kansas, and Mississippi.

Chief Justice Roberts: I'm sorry. Is that the right list? That's -- that's statutes passed after 1996.

Mr. Giatras: Yes.

Chief Justice Roberts: I looked at the amicus brief filed by the National Network, page 18 footnote 53, and I see California, Illinois, Michigan, Ohio. Which is the right list?

Mr. Giatras: And that is the right list, Chief Justice, and that includes West Virginia in the 1996, that was passed. And that is there on footnote number 53, just so it's correct.

Our reading of the statute is more reasonable than the Government's. Certainly with respect to the variances of the grammatical errors and the grammatical leaps that the Government must take in order to substantiate its reading of the statute, we believe that ours is more reasonable.

Likewise, the legislative history in this particular case is very weak, and if this Court even considers it, then I think you can take a look with respect to the text, the structure, the purpose and the history and determine --

Justice Stevens: Let me be sure I understand the legislative history correctly in a broad sense. The text of the bill as originally introduced in the Senate favors the Government. Is that correct?

Mr. Giatras: Yes, Your Honor.

Justice Stevens: And there was a change made in the House in the form of an amendment to that bill? Or was it a separate bill introduced in the House?

Mr. Giatras: It was not a separate bill.

There was -- there no committee -- there was no committee substitute, there was no committee hearings.

It just --

Justice Stevens: text.

They enacted a different

Mr. Giatras: Yes

Justice Stevens: , they did.

And then -- without explanation. And then the bill went back to the Senate.

As I understand it, it was approved in the form enacted by the House without -- with only that one comment.

Mr. Giatras: That is with only -- yes. And that -- and that comment did not speak -- the comment of the sponsor did not speak with respect to the domestic violence, the domestic relationships element.

Justice Stevens: Thank you.

Justice Souter: But he did say that he agreed to the change.

Mr. Giatras: He did say that he agreed with the change, and that he also said, though, that the he -- that the bill, the new bill made it more precise and broader. Which was a -- which was a quote from the sponsor.

If there are no further questions --

Justice Stevens: Let me be sure. But under your view, it actually made it narrower?

Mr. Giatras: Yes.

Justice Stevens: Yes.

Mr. Giatras: If there are no further questions, Respondent asks that the Court affirm the judgment of the --

Justice Scalia: Excuse me. Under anybody's view, it made it narrow. Under Lautenberg's view, it made it narrow.

Mr. Giatras: Other than he said the words that it made it more precise and broader.

Justice Scalia: How did it make it broader? I mean, it used to cover cutting -- cutting a credit card. Now, it no longer does.

Mr. Giatras: The text of the statute as enacted makes it more narrow.

Justice Scalia: Of course it does.

Chief Justice Roberts: Thank you, counsel.

Mr. Giatras: Thank you.

REBUTTAL ARGUMENT OF NICOLE A. SAHARSKY ON BEHALF OF THE PETITIONER

Chief Justice Roberts: Ms. Saharsky, six minutes.

Ms. Saharsky: Thank you. In this case, the Court has a choice between either reading the statute in a way that uses the words very unnaturally and unusually -- "committed by" to modify "use" and "element" -- treating a singular as plural, and the word "committed"

Chief Justice Roberts: Well, if I could stop you there. The very first sentence in the United States Code, 1 U.S.C. section 1, says the singular includes the plural.

Ms. Saharsky: Right, and this Court has said that you do that only when two things are true:

When it makes sense in context, and we think it doesn't because of the word "committed," which Respondent wants to read right out of the statute, and also because you do it when it's necessary to fulfill the evident purposes of the statute. And here, for the reasons we explained, treating the singular as plural would be contrary to the purposes of the --

Chief Justice Roberts: I know, but basically what you're saying is we don't follow 1 U.S.C.

section 1 because our reading is correct. If they said, well, it doesn't -- you know, in context it doesn't fulfill the purposes and therefore we read "element" as singular only rather than according to section 1 of the United States Code.

Ms. Saharsky: It's because the element -- the singular "element" has other indicia meaning it involves the word "committed" and then also this -- the fact that Congress's objective would be stymied if you took Respondent's reading.

So you've got a choice between just using the words unnaturally -- "committed by," taking "committed" and just making it superfluous, as in Respondent's view, or treating the singular "element" as plural, or you can give, as the Government is suggesting, a natural and logical reading that you're talking about an offense of this certain violent character committed by these certain people. And, yes, that involves looking slightly past Romanette (i) and (ii) structure to look at this being two clauses that both modify the word "offense." You --

Justice Scalia: You have to add words. It is unavoidable. To come to your reading, you must add words to the statute. To adopt the reading of the other side on the other hand, you need not add a single word.

You just have to resign yourself to the -- to the usage that is unusual but not unheard of, that a particular use was committed. And the other side gives a number of examples, as does the brief by -- by linguists, a number of examples where that appears.

So it's an unusual usage but not an unheard of usage. They don't have to add a single word or a single hard break in the text. You have to, to get to your construction.

Ms. Saharsky: With respect, Justice Scalia, we don't agree with that, and I'll give you two illustrations that hopefully would help establish that point: One, if you just read this all as a sentence without respect to the Romanettes (i) and (ii), you have an offense that is as a misdemeanor and has, as an element, committed by a certain group of persons. That reads as a sentence. There is an offense of a certain type committed by a certain group of persons.

Justice Breyer: For that, you'd have to assume that the GS-12 who drafted this, or whoever the equivalent was in the Senate, put the "that" in the wrong place. If he had put the "that" after the (i) when he broke it down, it would all read as a sentence.

The "that" would be for the first part, and you'd say "felony committed" for the part that interests us. Does that work?

Ms. Saharsky: I think it would read better that way. I think that it would --

Justice Scalia: You'd would have to put a "that" --

Ms. Saharsky: It would read --

Justice Scalia: You'd have to put a "that" at the beginning of (ii) as well, wouldn't you?

Ms. Saharsky: Again, I think if you just -- I don't think you need to. I think you can just read through this all as one sentence. And we looked at that previous -- while were you talking with Respondent's counsel, you looked at that previous version of the bill Congress considered, and it just had it all as one sentence. It said "an offense of this certain character committed by this certain group of persons." And that same structure is in the statute as enacted, and that shows that the "committed by" refers back to "offense."

And to get back to the point I opened with, the way that you choose between the two constructions in this case is to look at what Congress would achieve under Respondent's construction of the statute, which is a statute that applies only in 17 States, not --

Chief Justice Roberts: And, again, not to beat a dead horse, but it's footnote 8 of your brief on page 23 that lists the 17 States. They include California, Illinois, Michigan, Ohio, Virginia. That wouldn't be a useless act by Congress to cover everybody in those States.

Ms. Saharsky: No, but it wouldn't be consistent with what Congress was intending, which is to solve the nationwide problem that every person who proved that they were willing to hurt their family members should not be able to possess a firearm, whether they're a felon or whether they were convicted of a misdemeanor. And that was the problem that --

Chief Justice Roberts: I know, but you point was this doesn't do any good because it's only 17 States. Those are -- there are a lot of people in those States.

Ms. Saharsky: Right, but some persons in those States who commit the same types of offenses, as Justice Ginsburg pointed out -- you know, they commit the same violent acts against family members. Some of them would be prosecuted under the regular -- under a specific domestic violence statute, but some would be prosecuted under regular assault and battery statutes.

And it doesn't make any sense, in those same States, to treat some people as being subject to the possession ban and some people as not being subject to that possession ban.

Justice Scalia: It makes it easier to identify it. You don't have to go back and look to see whether this particular assault conviction was an assault on a family member or not. It's there on the face of the indictment. Pretty important, it seems to me.

Ms. Saharsky: With respect, Justice Scalia, you can't just tell from the face of the State indictment whether you would not be able to possess a firearm under Federal law, because the domestic relationship covered by the State offenses, it is a broader universe in each of those 17 States. More domestic relationships are covered than are covered by the Federal statute. So you could have been convicted in one of those 17 States of a specific domestic violence offense, and still that would not necessarily be the case that you couldn't possess a firearm under Federal law, because they cover, for example, dating relationships.

I understand that the notice concerns you've raised but just to get back to one other point that came up with Respondent's counsel, when a person wants to buy a firearm, he fills out this particular form, Form 4473, and that form specifically says on that offenses like assault and battery are covered. The ATF regulation that has been in place since this statute was enacted says that those -- that offenses such as assault and battery are covered. In fact, all the courts of appeals up until recently, nine of them had this settled understanding. Aside from the ATF having it, Congress relied upon it. And we think that it makes sense.

You should reverse the judgment below.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

(Whereupon, at 11:50 a.m., the case in the above-entitled matter was submitted.)