[T]he term 'misdemeanor crime of domestic violence' means an offense that--

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

(18 U.S.C. § 921(a)(33)(A), emphasis added.)

Okay, the use of force has to be an element of the offense as defined by the law of the state, etc. What about the commission by a person in one of the specified relationships? Does the "element" requirement extend that far or does it end with "weapon"? Chief Justice Roberts, in dissent, writes, "Taking a fair view, the text of §921(a)(33)(A) is ambiguous, the structure leans in the defendant's favor, the purpose leans in the Government's favor, and the legislative history does not amount to much. This is a textbook case for application of the rule of lenity."

Justice Ginsburg, writing the opinion of the Court, doesn't think so.

We apply the rule "only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute." United States v. Shabani, 513 U. S. 10, 17 (1994). Section 921(a)(33)(A)'s definition of "misdemeanor crime of domestic violence," we acknowledge, is not a model of the careful drafter's art. See Barnes, 295 F. 3d, at 1356. But neither is it "grievous[ly] ambigu[ous]." Huddleston v. United States, 415 U. S. 814, 831 (1974). The text, context, purpose, and what little there is of drafting history all point in the same direction: Congress defined "misdemeanor crime of domestic violence" to include an offense "committed by" a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime.

The text favors the Government position because "committed" probably refers back to "offense." We don't normally say a person "committed use" of something. Also, it would be odd to use the singular "element" if two elements were required. The structure favors the defendant because lumping these two different requirements together in clause (ii) is odd. It's odd no matter how you slice it.

I'm inclined to think that Justice Ginsburg's reading more accurately reflects the intent of the people who wrote the law. It does seem, though, that the rule of lenity is turned on and off based as much on policy views as on the actual degree of ambiguity in the statutory language. So now the rule of lenity requires not only that the statute be ambiguous but that it be grievously so?

Over at SL&P, Doug Berman is upset that no one is raising the Second Amendment and Heller's recognition of an individual right to bear arms as a reason for narrow construction. That doesn't bother me.  It seems perfectly clear that, as the Heller opinion says, the right can be lost by committing a crime, and it's pretty much up to the legislative authority to decide which crimes. What bugs me about this statute is federalism. Which clause of the Constitution gives Congress the power to decide who can possess a gun (in a state, as opposed to a federal enclave)? The notion that this is regulation of interstate commerce is absurd.