In dissent, Justice Brett M. Kavanaugh wrote that “the court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence.”
“Offenses against the person,” he wrote, is a widely used legal term of art that encompasses categories of crimes and does not connote degrees of culpability. Justice Kagan responded that the phrase in the career-criminal law was meaningfully different.
“That is no way to do statutory construction,” she wrote. “A court does not get to delete inconvenient language and insert convenient language to yield the court’s preferred meaning.”
Justice Kavanaugh added that, in any event, the ordinary meaning of “against the person of another” encompasses recklessness.
“If an individual fires a gun recklessly at a house and injures someone inside, that individual has used force against the victim,” he wrote. “If an individual recklessly throws bricks off an overpass and kills a driver passing underneath, that individual has used force against the victim. If an individual recklessly drives 80 miles per hour through a neighborhood and kills a child, that individual has used force against the child.
“It defies common sense and the English language,” he wrote, “to suggest otherwise.”
Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Amy Coney Barrett joined Justice Kavanaugh’s dissent in the case, Borden v. United States, No. 19-5410.