Borden v. United States

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 420–485
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T H E S U P R E M E C O U R T
June 10, 2021
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420 OCTOBER
TERM, 2020
Syllabus
BORDEN v. UNITED STATES
certiorari
to the united states court of appeals for
the sixth circuit
No. 19–5410. Argued November 3, 2020—Decided June 10, 2021
The Armed Career Criminal Act (ACCA) mandates a 15-year minimum
sentence for persons found guilty of illegally possessing a frearm who
have three or more prior convictions for a “violent felony.” An offense
qualifes as a violent felony under ACCA's elements clause if it necessar-
ily involves “the use, attempted use, or threatened use of physical force
against the person of another.” 18 U. S. C. § 924(e)(2)(B)(i). In Leocal v.
Ashcroft, 543 U. S. 1, the Court held that offenses requiring only a negli-
gent mens rea fall outside a relevantly identical defnition. Id., at 9.
The “critical aspect” in determining the relevant mens rea, the Court
explained, was the statute's demand that the perpetrator use physical
force “against the person or property of another.” Ibid. (emphasis in
original). Then in Voisine v. United States, 579 U. S. 686, the Court
held that reckless crimes fall within a different statutory defnition—
this one requiring the “use of physical force,” but lacking the “against”
phrase Leocal deemed “critical.” In both decisions, the Court left open
whether reckless offenses would satisfy ACCA's elements clause.
Petiti oner Char les Borden, Jr., pleaded g ui lty to a felon-i n-
possession charge, and the Government sought an enhanced sentence
under ACCA. One of the three convictions alleged as predicates was
for reckless aggravated assault in violation of Tennessee law. Borden
argued that this offense is not a violent felony under ACCA's elements
clause because a mental state of recklessness suffces for conviction. In
his view, only purposeful or knowing conduct satisfes the clause's de-
mand for the use of force “against the person of another.” The District
Court disagreed and sentenced Borden as a career offender. The Sixth
Circuit affrmed.
Held: The judgment is reversed, and the case is remanded.
769 Fed. Appx. 266, reversed and remanded.
Justice Kagan, joined by Justice Breyer, Justice Sotomayor,
and Justice Gorsuch, concluded that a criminal offense with a mens
rea of recklessness does not qualify as a “violent felony” under ACCA's
elements clause. Pp. 425–445.
(a) That conclusion follows from the statutory text. The phrase
“against another,” when modifying a volitional action like the “use of
force,” demands that the perpetrator direct his force at another individ-

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as: 593 U. S. 420 (2021)
421
Syllabus
ual. Reckless conduct is not aimed in that prescribed manner. Leocal
confr
ms that conclusion. When read against the words “use of force,”
the Court explained, the “against” phrase—the defnition's “critical
aspect”—“suggests a higher degree of intent” than (at least) negligence.
543 U. S., at 9. That understanding of “against” contradicts the Gov-
ernment's view that the phrase here does not incorporate a mens rea
requirement. Pp. 430–437.
(b) The ordinary meaning of the term “violent felony”—which the
elements clause defnes—also informs this construction. As Leocal ex-
plained, “we cannot forget that we ultimately are determining the mean-
ing of the term `crime of violence.' ” 543 U. S., at 11. The Court said
the same in Johnson v. United States, 559 U. S. 133, when construing
language in ACCA's defnition of “violent felony.” Id., at 139–140.
With that focus in place, both decisions construed the defnitions at issue
to mark out a narrow “category of violent, active crimes.” Id., at 140;
543 U. S., at 11. And those crimes are best understood to involve a
purposeful or knowing mental state—a deliberate choice of wreaking
harm on another, rather than mere indifference to risk. Pp. 437–438.
(c) Classifying reckless crimes as “violent felonies” would also confict
with ACCA's purpose. Congress enacted ACCA to address “the special
danger created when a particular type of offender—a violent crimi-
nal[ ]—possesses a gun.” Begay v. United States, 553 U. S. 137, 146.
An offender who has repeatedly committed “purposeful, violent, and ag-
gressive” crimes poses an uncommon danger of “us[ing a] gun deliber-
ately to harm a victim.” Id., at 145. But that is not so of someone
convicted of a crime, like a DUI offense, revealing only a “degree of
callousness toward risk.” Id., at 146. However blameworthy, the
reckless (or negligent) conduct involved in such a crime is “far removed”
from the “deliberate kind of behavior associated with violent criminal
use of frearms.” Id., at 147. The Government's contrary view would
label as ACCA predicates a range of common offenses—like reckless
driving—that Congress did not mark “for heightened punishment.”
543 U. S., at 11. Pp. 438–442.
(d) The Government's main response is this Court's decision in Voi-
sine, which interpreted the phrase “use of force” in defning a “misde-
meanor crime of domestic violence” to cover reckless conduct. But that
argument ignores the textual difference between the two statutes—the
“against” clause. That phrase, as Leocal recognized, is not window
dressing: It is the “critical” text for deciding the level of mens rea
needed. 543 U. S., at 9. And as the Court has explained, “against the
person of another,” when modifying the “use of physical force,” intro-
duces that action's conscious object. So too, the Government's argu-
ment disregards how the context and purpose of the statute in Voisine

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422 BORDEN
v. UNITED STATES
Syllabus
diverge from those of ACCA's elements clause. The provision in Voi-
sine
defnes not a “violent felony” but a “misdemeanor crime of domestic
violence.” It focuses on those convicted not of serious felony offenses,
but instead of “garden-variety assault or battery misdemeanors.” 579
U. S., at 695. And it captures not “violent, active” conduct alone, but
also “acts that one might not characterize as `violent' in a nondomestic
context.” United States v. Castleman, 572 U. S. 157, 165. Given those
surrounding differences in coverage, it makes sense that the domestic
violence provision would include reckless behavior when ACCA's ele-
ments clause does not. Pp. 442–445.
Justice Thomas concluded that ACCA's elements clause does not en-
compass Borden's conviction for reckless aggravated assault for the rea-
sons stated in his dissenting opinion in Voisine v. United States, 579
U. S. 686, 699. A crime that can be committed through mere reckless-
ness does not have as an element the “use of physical force” because
that phrase “has a well-understood meaning applying only to intentional
acts designed to cause harm.” Id., at 713. Borden's reckless offense
would fall within ACCA's residual clause had that provision not been
declared unconstitutional in Johnson v. United States, 576 U. S. 591.
Though Johnson was wrongly decided, it must be accepted in this case
because to do otherwise would create further confusion and division
about whether state laws prohibiting reckless assault satisfy the ele-
ments clause. Pp. 445–449.
Kagan, J., announced the judgment of the Court and delivered an opin-
ion in which Breyer, Sotomayor, and Gorsuch, JJ., joined. Thomas,
J., fled an opinion concurring in the judgment, post, p. 445. Kavanaugh,
J., fled a dissenting opinion, in which Roberts, C. J., and Alito and Bar-
rett, JJ., joined, post, p. 449.
Kannon K. Shanmugam argued the cause for petitioner.
With him on the briefs were Erin P. Rust, Jennifer Niles
Coffn, Jessica A. Morton, and Stacie M. Fahsel.
Eric J. Feigin argued the cause for the United States.
With him on the brief were Solicitor General Francisco, As-
sistant Attorney General Benczkowski, Morgan L. Ratner,
and Finnuala K. Tessier.*
*Briefs of amici curiae urging reversal were fled for the Americans for
Prosperity Foundation by Ryan P. Mulvey and Michael Pepson; for the
FAMM Foundation by David Debold, Avi Weitzman, Mary Price, and
Peter Goldberger; for Immigrant Rights Organizations by Rex S. Heinke,
Manuel D. Vargas, Devin S. Sikes, and Jeffrey Kane; for the National

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as: 593 U. S. 420 (2021)
423
Opinion of Kagan, J.
Justice Kagan announced the judgment of the Court and
del
ivered an opinion, in which Justice Breyer, Justice
Sotomayor, and Justice Gorsuch join.
The Armed Career Criminal Act (ACCA), 18 U. S. C.
§ 924(e), mandates a 15-year minimum sentence for persons
found guilty of illegally possessing a gun who have three or
more prior convictions for a “violent felony.” The question
here is whether a criminal offense can count as a “violent
felony” if it requires only a mens rea of recklessness—a less
culpable mental state than purpose or knowledge. We hold
that a reckless offense cannot so qualify.
I
Congress enacted ACCA, as its full name makes clear, to
address the “special danger” associated with “armed career
criminals.” Begay v. United States, 553 U. S. 137, 146
(2008). A “small percentage of repeat offenders,” Congress
found, commit a “large percentage” of all violent crimes.
Taylor v. United States, 495 U. S. 575, 581 (1990) (quoting
H. R. Rep. No. 98–1073, p. 1 (1984)). And when such a habit-
ual violent offender carries a gun, he poses a serious risk of
wreaking harm. As his prior convictions reveal, he is “the
kind of person who,” when armed, “might deliberately point
the gun and pull the trigger.” Begay, 553 U. S., at 146.
To allay that danger, ACCA enhances the sentence of any-
one convicted under 18 U. S. C. § 922(g) of being a felon in
possession of a frearm if he has three or more prior convic-
tions (whether state or federal) for a “violent felony.” The
Association of Criminal Defense Lawyers by Ishan K. Bhabha and David
Oscar Markus; for the National Association of Federal Defenders by
David A. Barrett, Menno Goedman, Keith M. Donoghue, Daniel L.
Kaplan, and Michael C. Holley; and for Leah Litman et al. by Jeffrey A.
Lamken, Sara E. Margolis, and Leah Litman, pro se.
A brief of amicus curiae urging affrmance was fled for the Criminal
Justice Legal Foundation by Kent S. Scheidegger and Kymberlee C.
Stapleton.
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424 BORDEN
v. UNITED STATES
Opinion of Kagan, J.
increase in penalty is severe: A 10-year maximum sentence
tur
ns into a 15-year minimum one. See § 924(a)(2), (e)(1).
And because that is so, the scope of the statute is closely
confned. See Begay, 553 U. S., at 146 (Congress did not
provide for “a 15-year mandatory prison term where th[e]
increased likelihood [of gun violence] does not exist”). The
penalty enhancement kicks in only when a defendant has
committed no fewer than three offenses meeting the statute's
defnition of “violent felony.” That defnition, in addition to
ticking off several specifc crimes (for example, burglary and
arson), includes the so-called elements clause, relevant here.
An offense qualifes as a violent felony under that clause if
it “has as an element the use, attempted use, or threatened
use of physica l force agai nst the person of another. ”
§ 924(e)(2)(B)(i).
To decide whether an offense satisfes the elements clause,
cour ts use the categor ica l approach. See St okel ing v.
United States, 586 U. S. –––, ––– (2019). Under that by-now-
familiar method, applicable in several statutory contexts, the
facts of a given case are irrelevant. The focus is instead on
whether the elements of the statute of conviction meet the
federal standard. Here, that means asking whether a state
offense necessarily involves the defendant's “use, attempted
use, or threatened use of physical force against the person of
another.” § 924(e)(2)(B)(i); see Shular v. United States, 589
U. S. –––, ––– – ––– (2020). If any—even the least culpa-
ble—of the acts criminalized do not entail that kind of force,
the statute of conviction does not categorically match the
federal standard, and so cannot serve as an ACCA predicate.
See Johnson v. United States, 559 U. S. 133, 137 (2010).
In this case, petitioner Charles Borden, Jr., pleaded guilty
to a felon-in-possession charge, and the Government sought
an enhanced sentence under ACCA. One of the three con-
victions alleged as predicates was for reckless aggravated
assault in violation of Tennessee law. The relevant statute
defnes that crime as “[r]ecklessly commit[ting] an assault”
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425
Opinion of Kagan, J.
and either “caus[ing] serious bodily injury to another” or
“us[i
ng] or display[ing] a deadly weapon.” Tenn. Code Ann.
§ 39–13–102(a)(2) (2003); see § 39–13–101(a)(1). Borden ar-
gued that this offense is not a violent felony under ACCA's
elements clause because a mental state of recklessness suf-
fces for conviction. In his view, only purposeful or knowing
conduct satisfes the clause's demand for the use of force
“against the person of another.” The District Court dis-
agreed, holding that reckless offenses qualify as violent fel-
onies and sentencing Borden as a career offender. The
Court of Appeals for the Sixth Circuit affrmed that decision
based on circuit precedent—though noting that Borden was
“not alone” in viewing the precedent as “wrongly decided.”
769 Fed. Appx. 266, 268 (2019) (citing United States v.
Verwiebe, 874 F. 3d 258 (CA6 2017)).
The circuit courts have indeed differed in addressing the
question Borden raises. Some have held, as in this case,
that a statute covering reckless conduct qualifes as a violent
felony under ACCA.
1
Others have concluded that only a
statute confned to purposeful or knowing conduct can count
as such a felony.
2
The dispute turns on the defnition of “vi-
olent felony” in ACCA's elements clause—more specifcally,
on how different mental states map onto the clause's demand
that an offense entail the “use . . . of physical force against
the person of another.” § 924(e)(2)(B)(i). We granted cer-
tiorari to resolve the issue. 589 U. S. ––– (2020).
II
Two pieces of background should ease the way. We begin
by setting out four states of mind, as described in modern
1
See United States v. Burris, 920 F. 3d 942, 951 (CA5 2019); United
States v. Haight, 892 F. 3d 1271, 1281 (CADC 2018); United States v. Pam,
867 F. 3d 1191, 1207–1208 (CA10 2017); United States v. Fogg, 836 F. 3d
951, 956 (CA8 2016).
2
See United States v. Begay, 934 F. 3d 1033, 1039 (CA9 2019); United
States v. Moss, 920 F. 3d 752, 756 (CA11 2019), vacated pending reh'g
en banc.
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426 BORDEN
v. UNITED STATES
Opinion of Kagan, J.
statutes and cases, that may give rise to criminal liability.
Those
mental states are, in descending order of culpability:
purpose, knowledge, recklessness, and negligence. We then
discuss two prior decisions of this Court addressing ques-
tions similar to the one here. In each, the Court considered
how a certain mental state relates to a statutory defnition
marking out a category of crimes. One of those defnitions
is almost identical to the elements clause; the other appro-
priates only the clause's frst half. The Court's analyses—
about both the statute more like and the statute less like the
elements clause—help frame today's decision.
Purpose and knowledge are the most culpable levels in the
criminal law's mental-state “hierarchy.” United States v.
Bailey, 444 U. S. 394, 404 (1980). A person acts purposefully
when he “consciously desires” a particular result. Ibid. (in-
ternal quotation marks omitted); see ALI, Model Penal Code
§ 2.02(2)(a) (1985). He acts knowingly when “he is aware
that [a] result is practically certain to follow from his con-
duct,” whatever his affrmative desire. Bailey, 444 U. S., at
404 (internal quotation marks omitted); see Model Penal
Code § 2.02(2)(b)(ii). We have characterized the distinction
between the two as “limited,” explaining that it “has not
been considered important” for many crimes. Bailey, 444
U. S., at 404 (internal quotation marks omitted); see Model
Penal Code, Comment 2, pp. 233–234 (calling the distinction
“narrow” and often “inconsequential”). A person who in-
jures another knowingly, even though not affrmatively
wanting the result, still makes a deliberate choice with full
awareness of consequent harm. See Bailey, 444 U. S., at
403–404.
3
3
The difference between purpose and knowledge matters for certain
“classes of crimes,” where “heightened culpability has been thought to
merit special attention.” United States v. Bailey, 444 U. S. 394, 405
(1980). The most typical examples are inchoate crimes (conspiracy or
attempts) and accessory liability (aiding and abetting). There, a purpose-
ful mental state may help separate criminal conduct from innocent behav-

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427
Opinion of Kagan, J.
Recklessness and negligence are less culpable mental
st
ates because they instead involve insuffcient concern with
a risk of injury. A person acts recklessly, in the most com-
mon formulation, when he “consciously disregards a substan-
tial and unjustifable risk” attached to his conduct, in “gross
deviation” from accepted standards. Model Penal Code
§ 2.02(2)(c); see Voisine v. United States, 579 U. S. 686, 691
(2016). That risk need not come anywhere close to a likeli-
hood. Speeding through a crowded area may count as reck-
less even though the motorist's “chances of hitting anyone
are far less [than] 50%.” 1 W. LaFave, Substantive Criminal
Law § 5.4(f ) (2018) (citing cases involving low-probability
events). Similarly (though one more step down the mental-
state hierarchy), a person acts negligently if he is not but
“should be aware” of such a “substantial and unjustifable
risk,” again in “gross deviation” from the norm. Model
Penal Code § 2.02(2)(d). There, the fault lies in the person's
simple “failure to perceive” the possible consequence of his
behavior. Ibid.
In Leocal v. Ashcroft, 543 U. S. 1 (2004), this Court held
that offenses requiring only a negligent mens rea fall outside
a statutory defnition relevantly identical to ACCA's ele-
ments clause. That defnition, codifed at 18 U. S. C. § 16(a),
is for the term “crime of violence,” which appears in many
federal criminal and immigration laws. Section 16(a) states,
in language that should by now sound familiar, that a “crime
of violence” means “an offense that has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another.” (In case you
missed it, the sole difference between § 16(a) and the ele-
ments clause is the phrase “or property,” which brings prop-
erty crimes within the former statute's ambit.) The ques-
ior. See ibid.; United States v. Falcone, 109 F. 2d 579, 581 (CA2 1940)
(L. Hand, J.); Model Penal Code, Comment 2, p. 234. We have no occasion
to address those offenses, nor the relationship more generally between
purpose and knowledge.
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428 BORDEN
v. UNITED STATES
Opinion of Kagan, J.
tion presented was whether that defnition covers DUI
offenses—for
driving under the infuence of alcohol and caus-
ing serious bodily injury—that require only a negligent men-
tal state. In addressing that issue, the parties had debated
whether “the word `use' alone supplies a mens rea element.”
543 U. S., at 9. But the Court thought the focus on that
one word “too narrow.” Ibid. Rather, we said, the “critical
aspect” of § 16(a) is its demand that the perpetrator use phys-
ical force “against the person or property of another.” Ibid.
(emphasis in original). As a matter of “ordinary or natural
meaning,” we explained, that “key phrase . . . most naturally
suggests a higher degree of intent than negligent” conduct.
Ibid. (internal quotation marks omitted). And confrmation
of that view came from the defned term itself. The phrase
“crime of violence,” we reasoned, “suggests a category of
violent, active crimes that cannot be said naturally to in-
clude” negligent offenses. Id., at 11. All that suffced to
resolve the status of the DUI offense at issue. The Court
thus reserved the question whether an offense with a mens
rea of recklessness likewise fails to qualify as a crime of vio-
lence. Id., at 13.
More recently, the Court held that reckless offenses fall
within a different statutory defnition—this one lacking the
“against another” phrase Leocal deemed “critical.” Id., at 9.
The law at issue in Voisine v. United States bars persons
convicted of a “misdemeanor crime of domestic violence”
from possessing firearms. 18 U. S. C. § 922(g)(9). That
phrase is defned to mean a misdemeanor, committed by a
person in a specifed domestic relationship with the victim,
that “has, as an element, the use or attempted use of physical
force.” § 921(a)(33)(A). In that truncated defnition, the
only language anyone could “think[ ] relevant” was the word
“use” (the word Leocal, in construing a longer defnition,
deemed not the right focus). Voisine, 579 U. S., at 692.
The Court understood “use” as demanding volition—the
“active employment” of force. Id., at 693. But we thought

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Opinion of Kagan, J.
that lone word “indifferent” to whether an actor choosing to
employ
force had a mental state of recklessness, knowledge,
or purpose. Ibid. And that reading of “use,” we continued,
is the only one consistent with the statute's history and pur-
pose. Congress enacted § 922(g)(9), we explained, to pre-
vent domestic abusers convicted of “garden-variety [misde-
meanor] assault” from owning guns—and most such
misdemeanors cover reckless conduct. Id., at 695. At each
step of the analysis, then, our decision was statute-
specifc. We made clear that other statutory defnitions—
whether the one in Leocal or the near-identical one in
ACCA's elements clause—might exclude reckless offenses.
See id., at 694–695, n. 4.
III
Today, we reach the question we reserved in both Leocal
and Voisine. We must decide whether the elements clause's
defnition of “violent felony”—an offense requiring the “use
of physical force against the person of another”—includes
offenses criminalizing reckless conduct.
4
We hold that it
does not. The phrase “against another,” when modifying
the “use of force,” demands that the perpetrator direct his
action at, or target, another individual. Reckless conduct is
not aimed in that prescribed manner. Our reading of the
relevant text fnds support in its context and purpose. The
treatment of reckless offenses as “violent felonies” would im-
pose large sentencing enhancements on individuals (for ex-
ample, reckless drivers) far afeld from the “armed career
criminals” ACCA addresses—the kind of offenders who,
when armed, could well “use [the] gun deliberately to harm
a victim.” Begay, 553 U. S., at 145. And contra the Gov-
ernment (and dissent), Voisine says nothing to the contrary.
4
Some States recognize mental states (often called “depraved heart” or
“extreme recklessness”) between recklessness and knowledge. We have
no occasion to address whether offenses with those mental states fall
within the elements clause.
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430 BORDEN
v. UNITED STATES
Opinion of Kagan, J.
A
1
The
parties here dispute the meaning of the phrase “use
of physical force against the person of another.” They start
in the same place, as they must: The “use of physical force,”
as Voisine held, means the “volitional” or “active” employ-
ment of force. 579 U. S., at 693. The fght begins with the
word “against.” According to Borden, that word means “in
opposition to,” and so “introduces the target of the preceding
action.” Brief for Petitioner 19 (citing dictionaries). Ex-
amples are easy to muster: The general deployed his forces
against a rival regiment, or the chess master played the
Queen's Gambit against her opponent. The Government re-
sponds that “against” instead means “mak[ing] contact
with,” and so introduces the mere recipient of force rather
than its “intended target.” Brief for United States 23–24
(also citing dictionaries). As examples, the Government of-
fers: “waves crashing against the shore or a baseball hitting
against the outfeld fence.” Id., at 23 (internal quotation
marks omitted). The difference in meaning, both parties
agree, matters for this case. Brief for Petitioner 19–21;
Brief for United States 23–24. If “against,” as used here,
expresses a kind of directedness or targeting, then reck-
lessness—as even the Government concedes—falls outside
the elements clause. See id., at 26 (noting that the op-
positional defnition of “against” would exclude “a defend-
ant who recklessly causes injury”). Only if the “against”
phrase lacks that connotation—if, as the Government argues,
it is indifferent to whether the conduct is directed at an-
other—can the elements clause include reckless offenses.
Id., at 23.
Borden's view of “against,” as introducing the conscious
object (not the mere recipient) of the force, is the right one
given the rest of the elements clause. Dictionaries offer
defnitions of “against” consistent with both parties' view:
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431
Opinion of Kagan, J.
The word can mean either “[i]n opposition to” or “in contact
w
ith,” depending on the context. See, e. g., Webster's New
International Dictionary 46 (2d ed. 1957) (giving both def-
nitions). The critical context here is the language that
“against another” modifes—the “use of physical force.” As
just explained, “use of force” denotes volitional conduct.
And the pairing of volitional action with the word “against”
supports that word's oppositional, or targeted, defnition.
Look once more at the examples offered in the last para-
graph. Borden's involve volitional conduct, by the general
or chess master—essentially, each actor's “use of force.”
There, the “against” phrase reveals at whom the conduct is
consciously directed: the rival army or player. In contrast,
the Government's examples do not involve volitional conduct,
because “waves” and “baseballs” have no volition—and in-
deed, cannot naturally be said to “use force” at all. There,
an “against” clause merely names a thing with which the
subject came into contact.
5
For our purpose, the more apt
examples are Borden's. As in those examples, ACCA's
“against” phrase modifes volitional conduct (i. e., the use of
force). So that phrase, too, refers to the conduct's conscious
object. Indeed, the Court has made a similar point before,
in an opinion by one of its great wordsmiths. When citizens
“bear [a]rms against” some entity, Justice Scalia wrote, what
follows the word “against” is “the target of the hostilities.”
District of Columbia v. Heller, 554 U. S. 570, 586 (2008) (in-
ternal quotation marks omitted). That is just as true when
5
In similar manner, the examples that dictionaries give of the “in con-
tact with” meaning of “against” all involve non-volitional conduct. See,
e. g., American Heritage Dictionary 23 (1981) (those same big “waves dash-
ing against the shore”); Webster's New International Dictionary, at 46
(“hail beats against the roof ”); Webster's Third New International Dic-
tionary 39 (1981) (“the fghter was knocked back against the ropes”). By
contrast, when the dictionaries discuss the “in opposition to” meaning,
their examples turn volitional. See id., at 39 (“a successful campaign
against the enemy”); American Heritage Dictionary, at 23 (a “struggle
against fate”).
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432 BORDEN
v. UNITED STATES
Opinion of Kagan, J.
someone, as in the elements clause, actively employs physi-
ca
l force.
On that understanding, the clause covers purposeful and
knowing acts, but excludes reckless conduct (as, once again,
the Government concedes). See Brief for United States 26;
see supra, at 430. Purposeful conduct is obvious. Suppose
a person drives his car straight at a reviled neighbor, desir-
ing to hit him. The driver has, in the statute's words,
“use[d] . . . physical force against the person of another.”
The same holds true for knowing behavior. Say a getaway
driver sees a pedestrian in his path but plows ahead anyway,
knowing the car will run him over. That driver, too, fts
within the statute: Although he would prefer a clear road,
he too drives his car straight at a known victim. Or said
otherwise, both drivers (even though for different reasons)
have consciously deployed the full force of an automobile at
another person. See United States v. United States Gyp-
sum, 438 U. S. 422, 445 (1978) (explaining that the law thus
views both as “intend[ing]” the result). But that is not so
of a reckless (or a negligent) actor. Imagine a commuter
who, late to work, decides to run a red light, and hits a pedes-
trian whom he did not see. The commuter has consciously
disregarded a real risk, thus endangering others. And he
has ended up making contact with another person, as the
Government emphasizes. See Brief for United States 23.
But as the Government just as readily acknowledges, the
reckless driver has not directed force at another: He has not
trained his car at the pedestrian understanding he will run
him over. See id., at 26. To the contrary, his fault is to
pay insuffcient attention to the potential application of force.
Because that is so—because his conduct is not opposed to or
directed at another—he does not come within the elements
clause. He has not used force “against” another person in
the targeted way that clause requires.
Leocal confrms our conclusion. Although the Court re-
served the question we decide today, its reasoning all but

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Opinion of Kagan, J.
precludes the Government's answer. Recall that Leocal
held
that negligent conduct falls outside a statutory defni-
tion much like the elements clause—one requiring the use of
physical force “against the person or property of another.”
18 U. S. C. § 16(a); see 543 U. S., at 9; supra, at 427–428. In
thus excluding crimes with a negligent mens rea, the Court
reasoned just as we have today. When read against the
words “use of force,” the “against” phrase—the defnition's
“critical aspect”—“suggests a higher degree of intent” than
(at least) negligence. 543 U. S., at 9. That view of § 16(a)'s
“against” phrase—as incorporating a mens rea require-
ment—contradicts the Government's (and dissent's) view
here that a materially identical phrase is “not a roundabout
way” of . . . incorporating a mens rea requirement. Brief
for United States 9. The Government thus asks us to read
ACCA's elements clause—specifcally, its “against” phrase,
modifying the “use of force”—contrary to how we have read
near-identical words before.
Even the single difference between the two statutes works
against the Government: On its reading, § 16(a)'s two added
words would turn that provision's “against” phrase into sur-
plusage. The problem begins with the Government's at-
tempt to give ACCA's own “against” phrase meaning. If not
to incorporate an intent requirement, what function does
that phrase serve? The Government's theory is that the
phrase limits the elements clause to crimes involving force
against people, as opposed to property. See id., at 23. That
would give the clause some work to do in ACCA. But as
noted earlier, the statute at issue in Leocal does not make
that distinction: To repeat, § 16(a)'s “against” phrase refers
to uses of force “against the person or property of another.”
§ 16(a) (emphasis added); see supra, at 427. In other words,
§ 16(a) lists both of the two (and only two) plausible objects
of force. So the Government's intent-less reading would
leave the “against” phrase in § 16(a) without any function; it
would render the phrase surplusage. Far from thinking
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such a thing possible, the Leocal Court considered § 16(a)'s
“agai
nst” phrase “key” and “critical”—again, because it (in
combination with the “use of force” language) defnes the
requisite “degree of intent.” 543 U. S., at 9. Unlike the
Government, we favor a construction consonant with that
view. The “against” phrase indeed sets out a mens rea
requirement—of purposeful or knowing conduct.
2
The dissent offers up two “alternative”—really, mutually
inconsistent—counter-arguments about the elements clause's
text. In the frst, the dissent claims to fnd a “term of art”
in the clause—implicitly admitting that the language, as ordi-
narily understood, excludes reckless conduct. See West Vir-
ginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 92, n. 5
(1991) (noting that terms of art “depart from ordinary mean-
ing ”). Here, the dissent is all on its own: Neither the Gov-
ernment nor any of the many courts that have looked at this
issue has advanced this term-of-art theory. In the second,
the dissent goes more conventional, essentially repeating
what the Government says, though with a distinctively
question-begging quality. The term-of-art claim fails be-
cause the dissent's proposed term does not appear in—and
indeed differs in critical ways from—the elements clause's
text. The ordinary-meaning claim fails for reasons already
familiar.
The dissent tries to sidestep the parties' dispute over ordi-
nary meaning by depicting the “against” phrase as a “term
of art” having “zero to do with mens rea.” Post, at 453–
454, 461 (opinion of Kavanaugh, J.). In the dissent's words:
“[W]e should not disregard the longstanding meaning of a
criminal-law term of art—namely, offenses against the per-
son—to smuggle” a mens rea requirement into the elements
clause. Post, at 460. The dissent here relies on the appear-
ance in many state criminal codes of headings and captions
using the phrase “Offenses Against the Person.” Post, at
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455; see, e. g., La. Rev. Stat. Ann., Tit. 14, ch. 1, pt. 2 (West
2016)
(listing offenses—spanning homicide, negligent DUI,
and defamation—under the chapter heading “offenses
against the person”).
But note how this argument breaks down at its frst move:
The dissent offers up a “term of art” that is nowhere in the
statute the dissent is supposed to be construing. The dis-
sent does not pretend that the statutory phrase “use of phys-
ical force against the person of another” is a term of art;
there is not, even in the dissent's imagining, any historical or
distinctly legal meaning associated with that language. The
dissent instead insists on reading into ACCA a term-of-art
meaning for a phrase—“offenses against the person”—that
makes no appearance there. That is no way to do statutory
construction. The first precondition of any term-of-art
reading is that the term be present in the disputed statute.
Here, it is not. See Food Marketing Institute v. Argus
Leader Media, 588 U. S. –––, ––– (2019) (similarly rejecting
an attempt to “rearrang[e]” statutory text to create a “term
of art” that “does not appear in the statute”).
And indeed, the dissent's extra-statutory term differs in a
critical way from the actual language of the actual elements
clause. As discussed above, the “against” phrase in that
clause modifes the “use of physical force”—language this
Court has held (and the dissent concedes) denotes volitional
conduct. It is, as explained above, the pairing of volitional
action with the word “against” that produces its oppositional
or directed meaning—and excludes recklessness from the
statute. See supra, at 430–431. Nor is that only our expla-
nation: As noted earlier, Leocal said the identical thing about
nearly identical statutory language, focusing on the interplay
of “use” and “against” to conclude that the language had
everything—not “zero”—to do with mens rea. See 543
U. S., at 9 (holding that the whole phrase “most naturally
suggests a higher degree of intent”); supra, at 432–433. So
it is no small thing that the dissent, in its term-of-art machi-
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nations, removes the verb phrase “use of physical force” and
substitutes
the simple noun “offenses.” In so doing, it has
replaced the very thing that shapes the “against” phrase's
meaning. Once again, statutory construction does not work
that way: A court does not get to delete inconvenient lan-
guage and insert convenient language to yield the court's
preferred meaning.
Finally, consider where the dissent looks for its supposed
“offenses against the person” term of art. Not to any stat-
ute defning crimes or setting penalties (as ACCA does).
Rather to headings and captions designed to cover a myriad
of offenses, from homicide through defamation. They are
umbrella terms used for cataloguing crimes—nothing more.
That is why the dissent cites no judicial decision construing
the term, much less saying anything about what it means for
mens rea. The term cannot have a traditional or common-
place meaning in statutes specifying criminal conduct: It
does not appear in them in the frst place.
In a nutshell, the dissent's “term of art” theory goes as
follows: Congress took an umbrella term (“offenses against
the person”) used to organize a broad set of crimes (some not
even conceivably ACCA predicates); plucked out three words
(“against the person”); appended them to a statutory phrase
(“use of physical force”) with which they are not often asso-
ciated; put the combination into a substantive criminal
statute—all to signify, contra Leocal, a term of art indiffer-
ent to mens rea. No wonder the dissent is the frst to make
the argument. See supra, at 434. It fails at every turn.
And so the dissent must proceed to its ordinary-meaning
claim, reprising (if at higher volume) the Government's
fawed argument about what the “against” phrase is most
naturally read to encompass. Here, the dissent insists that
because reckless force can make contact with a person—e. g.,
because a reckless driver can run over a pedestrian—the
statute must encompass that conduct. See post, at 468–470.
But that just assumes the conclusion: The very question here
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437
Opinion of Kagan, J.
is whether the statutory language Congress enacted requires
that
force be directed at, rather than just happen to hit, an
object. As to that issue, the dissent asserts that “[s]tate and
federal reporters” are “replete with references to individuals
recklessly using force against others.” Post, at 466, and
n. 15 (quoting, for example, a decision saying that a “jury
found that Arton did not intentionally or recklessly use ex-
cessive force against Cook”). But once again, the dissent is
putting the rabbit in the hat. If Congress had used the
word “recklessly” in the elements clause, we would have to
interpret that clause to cover reckless offenses, even though
the best reading of the clause without that word goes the
other way. But Congress did not say “recklessly.” And we
must construe the elements clause as it is—without frst in-
serting the word that will (presto!) produce the dissent's
reading.
6
B
Were there any doubt about the elements clause's mean-
ing, context and purpose would remove it.
The elements clause defnes a “violent felony,” and that
term's ordinary meaning informs our construction. Leocal
well expressed this idea: In interpreting § 16(a), “we cannot
forget that we ultimately are determining the meaning of the
term `crime of violence.' ” 543 U. S., at 11. Quoting that
statement, Johnson v. United States said the same thing
when construing language (there, the term “physical force”)
6
The dissent also goes through a complicated counting exercise about
how different Justices have divided in this and two other cases, apparently
to show how unfair it is that the dissent's view has not prevailed here.
See post, at 452–453, n. 3. But there is nothing particularly unusual about
today's line-up. Four Justices think that the “use” phrase, as modifed by
the “against” phrase, in ACCA's elements clause excludes reckless conduct.
One Justice thinks, consistent with his previously stated view, that the
“use” phrase alone accomplishes that result. See post, at 446 (Thomas,
J., concurring in judgment). And that makes fve to answer the question
presented. Q: Does the elements clause exclude reckless conduct? A:
Yes, it does.
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in ACCA's defnition of “violent felony.” 559 U. S., at 140.
“Ulti
mately, context determines meaning,” we wrote, and
“[h]ere we are interpreting ” a phrase “as used in defning ”
the term “violent felony.” Id., at 139–140. With that focus
in place, both decisions construed the defnitions at issue to
mark out a narrow “category of violent, active crimes.” Id.,
at 140; 543 U. S., at 11. And those crimes are best under-
stood to involve not only a substantial degree of force, but
also a purposeful or knowing mental state—a deliberate
choice of wreaking harm on another, rather than mere indif-
ference to risk. As Leocal explained: The term “crime of
violence” in § 16(a) “cannot be said naturally to include DUI
offenses”—typically crimes of recklessness or negligence.
Ibid. In a case much like this one, then-Judge Alito reiter-
ated the point. He wrote that “[t]he quintessential violent
crimes,” like murder or rape, “involve the intentional use” of
force. Oyebanji v. Gonzales, 418 F. 3d 260, 264 (CA3 2005).
By contrast, drunk driving and other crimes of recklessness,
though “moral[ly] culpab[le],” do not ft within “the ordinary
meaning of the term `violent' crime.” Ibid.
Nor does the classifcation of reckless crimes as “violent
felonies” comport with ACCA's purpose. Congress enacted
ACCA, as noted earlier, to address “the special danger
created when a particular type of offender—a violent crimi-
nal[ ]—possesses a gun.” Begay, 553 U. S., at 146; see supra,
at 423. In keeping with that concern, ACCA sets out to
identify, for sentencing purposes, the eponymous “armed
career criminal”—the sort of offender who, when armed,
“might deliberately point the gun and pull the trigger.”
Begay, 553 U. S., at 145–146. The Act discharges that goal
by looking to a person's criminal history. An offender who
has repeatedly committed “purposeful, violent, and aggres-
sive” crimes, we have explained, poses an uncommon danger
of “us[ing a] gun deliberately to harm a victim.” Id., at 145.
But that is not so—as this Court has recognized—of someone
convicted of a crime, like a DUI offense, revealing only a
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Opinion of Kagan, J.
“degree of callousness toward risk.” Id., at 146. However
blamewor
thy, the reckless (or negligent) conduct involved in
such a crime is “far removed” from the “deliberate kind of
behavior associated with violent criminal use of frearms.”
Id., at 147. So there is no reason, consistent with ACCA's
focus on armed career criminals, for reckless offenses to pre-
cipitate the statute's enhanced sentences.
7
Consider the kinds of crimes—the too-common stuff of or-
dinary offenders—that would trigger ACCA's 15-year mini-
mums if we adopted the Government's (or dissent's) position.
Many convictions for reckless crimes result from unsafe driv-
ing. Under the same Tennessee reckless-assault law applied
to Borden, people have been convicted for injuries attribut-
able to running a stop sign or veering onto the sidewalk.
See State v. Graham, 2008 WL 199851, *2–*4 (Tenn. Crim.
App., Jan. 24, 2008); State v. Gillon, 15 S. W. 3d 492, 496–497
(Tenn. Crim. App. 1997). In States with similar statutes re-
quiring only a reckless mens rea, many individuals have been
convicted for accidents resulting from text messaging or, of
course, drunk driving. See, e. g., State v. Belleville, 166
N. H. 58, 63–64, 88 A. 3d 918, 922 (2014); State v. Reando,
313 S. W. 3d 734, 740 (Mo. App. 2010). In one case, even a
police offcer was convicted of a reckless assault for speeding
to a crime scene without his siren on and hitting another
7
The dissent would upend our consistent view of Congress's purpose by
treating as ACCA predicates not just “purposeful, violent, and aggressive”
crimes but the disregard-of-risk offenses we have found “far removed.”
Begay, 553 U. S., at 145, 147. The “line for criminal liability,” the dissent
argues, is generally drawn at recklessness, and so the Model Penal Code
“establishes recklessness as the default minimum mens rea.” Post, at
463. But we have never suggested that the threshold for criminal liability
is the threshold for ACCA, or that ACCA is about offenders who meet
“minimum” requirements. To the contrary. As just noted, we have in-
sisted on a higher threshold: ACCA predicates are the crimes “typically
committed by those whom one normally labels `armed career criminals' ”—
whose very possession of a gun poses a “special danger.” Begay, 553 U. S.,
at 146.

440 BORDEN
v. UNITED STATES
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patrol car. See Seaton v. State, 385 S. W. 3d 85, 88–89 (Tex.
Cr
im. App. 2012). Or take some real-life non-driving exam-
ples. A shoplifter jumps off a mall's second foor balcony
while feeing security only to land on a customer. See
Craver v. State, 2015 WL 3918057, *2 (Tex. App., June 25,
2015). An experienced skier heads straight down a steep,
mogul-flled slope, “back on his skis, arms out to his sides,
off-balance”—until he careens into someone else on the hill.
People v. Hall, 999 P. 2d 207, 211 (Colo. 2000). Or a father
takes his two-year-old go-karting without safety equipment,
and injures her as he takes a sharp turn. See State v. Gim-
ino, 2015 WL 13134204, *1 (Wis. App., Apr. 15, 2015).
Are these really ACCA predicates? All the defendants in
the cases just described acted recklessly, taking substantial
and unjustifed risks. And all the defendants hurt other
people, some seriously, along the way. But few would say
their convictions were for “violent felonies.” See Leocal,
543 U. S., at 4 (holding that a “DUI causing serious bodily
injury” is not a “crime of violence”). Few would think their
offenses of a kind “typically committed by” armed career
criminals. Begay, 553 U. S., at 146. And few would believe
those defendants to pose an exceptional danger of doing
harm were they to possess a gun. See id., at 145–146. Ex-
tending the elements clause to reckless offenses would thus
do exactly what Leocal decried: “blur the distinction be-
tween the `violent' crimes Congress sought to distinguish for
heightened punishment and [all] other crimes.” 543 U. S.,
at 11.
8
8
The dissent—once again, contrary to the statute's design—would blur
that distinction, on the ground that crimes like reckless driving can cause
great harm. See post, at 479–481. Of course they can. But in viewing
that fact as controlling, the dissent runs into not just ACCA but pretty
much all of sentencing law. That law almost invariably turns on mental
state as well as harm. Consider the Tennessee statute giving rise to this
case. Borden's reckless assault conviction carried a sentence of two to
twelve years; but had he been convicted of purposeful or knowing assault,
the sentencing range would have been three to ffteen years. Compare
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The Government's response (echoed in the dissent)—that
st
atutes covering reckless conduct can also “cover[ ] classi-
cally violent crimes”—has no purchase given ACCA's cate-
gorical approach. Brief for United States 41; see post, at
481–484. The Government lists, for example, several prose-
cutions for serious beatings brought under the Tennessee
law prohibiting reckless aggravated assault. See Brief for
United States 42 (describing cases in which a defendant
“slamm[ed] his fst into the face of a man” and another de-
fendant “looked the victim directly in the eye” and kicked
her). In those cases, the State presumably decided to
charge a defendant with reckless (rather than purposeful or
knowing) assault because of some problem or idiosyncrasy in
the case. (In the two cases described, for instance, one of
the defendants was high on drugs, and the other had a plausi-
ble self-defense claim.) But under the categorical approach,
the existence of such cases is neither here nor there. An
offense does not qualify as a “violent felony” unless the least
serious conduct it covers falls within the elements clause.
See Moncrieffe v. Holder, 569 U. S. 184, 190–191 (2013) (“Be-
cause we examine what the state conviction necessarily in-
volved, not the facts underlying the case, we must presume
that the conviction rested upon nothing more than the least
Tenn. Code Ann. §§ 39–13–102(2), 40–35–111(b)(4), with §§ 39–13–102(1),
40–35–111(b)(3). In imposing lesser penalties for recklessness, Tennes-
see—like the mine run of States with similar penalty schemes—is not
suggesting that such offenses are “benign.” Post, at 463. They are rec-
ognizing, though, that mental state matters to culpability—and more, that
an act done recklessly often should not receive as harsh a punishment as
the same act done purposefully or knowingly, even when the two cause the
same harm. That approach is the one ACCA takes in reserving enhanced
penalties for multiple instances of purposeful and knowing, but not reck-
less, conduct. The dissent would write a different statute, based on a
different theory of criminal punishment. But the dissent's preferred ap-
proach is not the one Congress enacted into law. And the dissent does
not get to tell Congress that, in writing the statute it wrote, it failed to
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of the acts criminalized” (alterations and internal quotation
marks
omitted)); supra, at 424. That approach is under-
inclusive by design: It expects that some violent acts, be-
cause charged under a law applying to non-violent conduct,
will not trigger enhanced sentences. So what matters are
not the convictions the Government offers, but those for, say,
running a stop sign or skiing too wildly. Because a law
criminalizing recklessness covers—indeed, was likely de-
signed for—that kind of conduct, the offense cannot count as
a violent felony.
C
To all of this, the Government offers one main response:
this Court's decision in Voisine. (And again, the dissent re-
iterates the Government's arguments. See post, at 470–
477.) As described earlier, Voisine held that the defnition
of “misdemeanor crime of domestic violence”—featuring the
simple phrase “use of physical force”—includes reckless con-
duct. 18 U. S. C. §§ 922(g)(9), 921(a)(33)(A); see supra, at
428–429. The Government acknowledges that Voisine ex-
pressly left open the question presented here. See 579
U. S., at 694–695, n. 4. But in the Government's view, the
“logic” of that decision establishes that ACCA's elements
clause, too, covers reckless offenses. Brief for United States
14. “Voisine's key insight,” the Government says, “is that
the word `use' refers to the `act of employing something ' and
does not require a purposeful or knowing state of mind.”
Ibid. (internal quotation marks omitted). That insight, the
Government concludes, “applies equally to the ACCA's ele-
ments clause.” Id., at 8. But the Government's argument
ignores the textual difference between the two statutes—not
the word “use” (which is indeed the same), but the “against”
phrase on which our holding is based. And so too, the argu-
ment disregards how the context and purpose of the statute
in Voisine diverge from those of ACCA's elements clause.
Most important, the two statutes' texts, when read in their
entirety, refute the Government's (and the dissent's) position.
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The domestic violence defnition in Voisine refers only to of-
fenses
involving the “use of physical force”; it lacks the ensu-
ing phrase “against the person of another.” Voisine thus
focused exclusively on the word “use”—as the Court noted,
“[t]he only statutory language either party [thought] rele-
vant.” 579 U. S., at 692. That word, the Court explained,
requires a volitional act, but not a purposeful or knowing
mens rea. See id., at 692–693. And so we would say again
today. For the mens rea requirement we fnd in ACCA's
elements clause does not come from the word “use.” It in-
stead comes from modifying language that is missing in the
domestic-violence provision (and missing, too, in the Govern-
ment's argument): “against the person of another.” That
phrase, as Leocal recognized, is not window dressing: It is
the “critical” text for deciding the level of mens rea needed.
543 U. S., at 9. As we have explained, “against the person
of another,” when modifying the “use of physical force,” in-
troduces that action's conscious object. See supra, at 430–
432. So it excludes conduct, like recklessness, that is not
directed or targeted at another. Because Voisine construed
a statutory provision without that intent-laden language, the
decision cannot tell us what ACCA's elements clause re-
quires. See Walker v. United States, 931 F. 3d 467, 469–470
(CA6 2019) (Kethledge, J., dissenting from denial of reh'g en
banc) (“Voisine tells us what `use' means, not what `against
the person of another' means”). Thus does a “difference in
text yield[ ] a difference in meaning.” Id., at 468.
9
9
In one paragraph of its brief, the Government tries to erase this textual
difference by invoking a sentence in Voisine that uses the word “against.”
See Brief for United States 24. (The dissent does the same, if at greater
length. See post, at 467–468, 473–475.) Recall that the domestic vio-
lence statute bars someone from owning a gun if he has been convicted of
a misdemeanor that has, as an element, the “use” of physical force “com-
mitted by a current or former spouse, parent, or guardian of the victim”
or by a person in another of three specifed relations with the victim.
§ 921(a)(33)(A); see supra, at 428. Rather than echo that awkward con-
struction, the Court used shorthand, describing the statute as applying to
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Likewise, context and purpose distinguish the two stat-
utes.
The provision in Voisine defnes not a “violent felony”
but a “misdemeanor crime of domestic violence.” It focuses
on those convicted not of serious felony offenses, but instead
of “garden-variety assault or battery misdemeanors.” 579
U. S., at 695. And it captures not “violent, active” conduct
alone, see supra, at 437–439, but also “acts that one might
not characterize as `violent' in a nondomestic context.”
United States v. Castleman, 572 U. S. 157, 165 (2014) (refer-
ring to “[m]inor uses of force” like “grabbing [and] pinch-
ing ”). Given those surrounding differences in coverage, it
is hardly remarkable that the domestic violence provision
would include reckless behavior when ACCA's elements
clause does not. And relatedly, the two statutes accomplish
dissimilar things. The provision in Voisine adds misde-
meanant domestic abusers to a long list of people (including
felons, substance abusers, and the mentally ill) disqualifed
from possessing a gun. See § 922(g)(1)–(9); Castleman, 572
a person with a “misdemeanor conviction for the `use . . . of physical force'
against a domestic relation.” 579 U. S., at 698. In the Government's
view, that line shows that we “treated the statute as if it contained a
prepositional phrase similar to the ACCA's” (and still found it to include
reckless conduct). Brief for United States 24. We think that a stretch.
The locution shows only that sometimes we do not paraphrase complex
statutory language as well as we might. (Mea culpa.) What matters in
Voisine is not a one-line description, but a pages-long analysis of the statu-
tory text—and that discussion gives no support to the Government.
Rather than imply an “against” clause, Voisine focused like a laser on the
meaning of “use”—because we understood the statute to say nothing else.
See, e. g., 579 U. S., at 692 (“Nothing in the word `use'—which is the only
statutory language either party thinks relevant—indicates that § 922(g)(9)
applies exclusively to knowing or intentional domestic assaults.”); id., at
693–694 (citing examples to show “the ordinary meaning of the word
`use' ”). “[T]he language of an opinion,” we have stated, “is not always to
be parsed as though we were dealing with language of a statute.” Reiter
v. Sonotone Corp., 442 U. S. 330, 341 (1979). And that is most obviously
true when an opinion's language revises (for easier reading) the statute's
own. Better to heed the statutory language proper.
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Thomas, J., concurring in judgment
U. S., at 166–167. The recidivist offenders to whom ACCA
appl
ies
are already subject to that disability. The statute addition-
ally imposes on them—precisely because they are “armed
career criminals,” not ordinary offenders—greatly enhanced
prison sentences. So again, we see nothing surprising—
rather, the opposite—in the two statutes' dissimilar treat-
ment of reckless crimes.
IV
Offenses with a mens rea of recklessness do not qualify as
violent felonies under ACCA. They do not require, as
ACCA does, the active employment of force against another
person. And they are not the stuff of armed career crimi-
nals. The judgment below is therefore reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, concurring in the judgment.
This case forces us to choose between aggravating a past
error and committing a new one. I must choose the former.
Although I am “reluctant to magnify the burdens that our
[erroneous] jurisprudence imposes,” Ring v. Arizona, 536
U. S. 584, 610 (2002) (Scalia, J., concurring), I conclude that
the particular provision at issue here does not encompass
petitioner's conviction for reckless aggravated assault, even
though the consequences of today's judgment are at odds
with the larger statutory scheme. The need to make this
choice is yet another consequence of the Court's vagueness-
doctrine cases like Johnson v. United States, 576 U. S. 591
(2015).
I
The Armed Career Criminal Act provides enhanced penal-
ties for criminals convicted of certain frearms offenses who
have at least “three previous convictions . . . for a violent
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446 BORDEN
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Thomas, J., concurring in judgment
felony or a serious drug offense.” 18 U. S. C. § 924(e)(1).
As
relevant here, the Act defnes a “violent felony” as a
“crime punishable by imprisonment for a term exceeding one
year” that either “has as an element the use, attempted use,
or threatened use of physical force against the person of an-
other” (the elements clause) or “involves conduct that pre-
sents a serious potential risk of physical injury to another”
(the residual clause). § 924(e)(2)(B).
1
The question presented here is whether the elements
clause encompasses petitioner's conviction under Tennessee
law for reckless aggravated assault. It does not. The plu-
rality focuses on the latter part of the operative language:
“against the person of another.” I rest my analysis instead
on a separate phrase: “use of physical force.” As I have
explained before, a crime that can be committed through
mere recklessness does not have as an element the “use of
physical force” because that phrase “has a well-understood
meaning applying only to intentional acts designed to cause
harm.” Voisine v. United States, 579 U. S. 686, 713 (2016)
(Thomas, J., dissenting). The elements clause does not en-
compass petitioner's conviction because the statute under
which he was convicted could be violated through mere
recklessness.
But although the Court's conclusion that petitioner's con-
viction does not satisfy the elements clause is sound, the im-
plication that he is something other than an “armed career
criminal” is not. The state law here prohibits “[r]ecklessly
. . . [c]aus[ing] serious bodily injury to another.” Tenn. Code
Ann. § 39–13–102(a)(2)(A) (2003). That offense would satisfy
the residual clause because it “involves conduct that presents
a serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii). So although the elements clause does not
make petitioner an armed career criminal, the residual
clause would.
1
The defnition also covers any felony that “is burglary, arson, or extor-
tion” or “involves use of explosives.” § 924(e)(2)(B)(ii).
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447
Thomas, J., concurring in judgment
The problem is that Johnson held that the residual clause
is
“unconstitutionally vague” and thus unenforceable. 576
U. S., at 597. This left prosecutors and courts in a bind.
Many offenders had committed violent felonies, but Johnson
foreclosed invoking the residual clause to establish that fact.
The workaround was to read the elements clause broadly.
But the text of that clause cannot bear such a broad reading.
II
There is a straightforward solution to this dilemma—
overrule Johnson.
2
Johnson declared the residual clause
not just too vague as applied in that case but also facially
vague—meaning that the residual clause could never be em-
ployed consistent with the Constitution. That decision was
wrong for at least two reasons.
First, to “pronounce that the statute is unconstitutional in
all applications . . . seems to me no more than an advisory
opinion—which a federal court should never issue at all.”
Chicago v. Morales, 527 U. S. 41, 77 (1999) (Scalia, J., dissent-
ing). Courts have no authority to “ `strik[e] down' ” statu-
tory text. See United States v. Sineneng-Smith, 590 U. S.
–––, ––– (2020) (Thomas, J., concurring); see also Mitchell,
The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018).
Nor may courts resolve “general questions of legality” by
“provid[ing] relief beyond the parties to the case.” Trump
v. Hawaii, 585 U. S. –––, –––, ––– (2018) (Thomas, J., concur-
ring). A court may only “ `adjudge the legal rights of liti-
gants in actual controversies.' ” United States v. Raines,
362 U. S. 17, 21 (1960). When faced with a criminal statute
too vague for the case at hand, the right answer likely is to
apply the rule of lenity and “declin[e] to apply [the statute]
on a case-by-case basis.” Sessions v. Dimaya, 584 U. S.
2
Johnson has already upended many statutes. United States v. Davis,
588 U. S. ––– (2019); Sessions v. Dimaya, 584 U. S. 148 (2018); Welch v.
United States, 578 U. S. 120 (2016) (making Johnson retroactive). And
the parties agree that more are likely to follow.
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Thomas, J., concurring in judgment
148, 208 (2018) (Thomas, J., dissenting). By, instead, pur-
por
ting to decide theoretical cases for theoretical parties not
before the Court, Johnson departed from foundational limits
on the judicial power.
Second, even assuming that the petitioner's plea for facial
relief was cognizable, Johnson deviated from the usual legal
standard. To obtain facial relief, a plaintiff normally “must
establish that no set of circumstances exists under which the
Act would be valid.” E. g., United States v. Salerno, 481
U. S. 739, 745 (1987). That is because a facial challenge, if
successful, has the same effect as “nullify[ing]” a statute.
Ayotte v. Planned Parenthood of Northern New Eng., 546
U. S. 320, 329 (2006). The petitioner in Johnson did not sat-
isfy that standard. Indeed, the Johnson majority acknowl-
edged that “there will be straightforward cases under the
residual clause, because some crimes clearly pose a serious
potential risk of physical injury to another.” 576 U. S., at
602.
These errors show that this Court in Johnson not only
misapplied the Due Process Clause but also exercised the
legislative role. Legislatures alone have authority “to pre-
scribe general rules for the government of society.” Flet-
cher v. Peck, 6 Cranch 87, 136 (1810). Courts, by contrast,
have authority to provide only those “remed[ies that are]
tailored to redress the plaintiff 's particular injury.” Gill v.
Whitford, 585 U. S. –––, ––– (2018). Simply put, where en-
forcement of a law would confict with the Constitution, a
court has authority under the Supremacy Clause to enjoin
enforcement, but a court cannot, consistent with separation
of powers, enjoin enforcement of a statute where enforce-
ment would be lawful. Johnson, however, conducted the
“quintessentially legislative work” of altering the legal rules
that would apply in cases where the residual clause could
lawfully be enforced. See Planned Parenthood of Northern
New Eng., 546 U. S., at 329–330.
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449
Kavanaugh, J., dissenting
III
I
hesitate to give petitioner the beneft of Johnson, be-
cause his crime is a “violent felony” as Congress defned the
term. Indeed, in other contexts, I have resisted exacerbat-
ing similar errors. See Pepper v. United States, 562 U. S.
476, 518–520 (2011) (dissenting opinion) (declining to apply
this Court's erroneous holding that the Sentencing Guide-
lines are never mandatory). Yet I reluctantly conclude that
I must accept Johnson in this case because to do otherwise
would create further confusion and division about whether
state laws prohibiting reckless assault satisfy the elements
clause.
3
See Vance v. Ball State Univ., 570 U. S. 421, 450–
451 (2013) (Thomas, J., concurring). I therefore concur in
the judgment.
Justice Kavanaugh, with whom The Chief Justice,
Justice Alito, and Justice Barrett join, dissenting.
In 1984, Congress passed and President Reagan signed the
Armed Career Criminal Act, known as ACCA. That Act
seeks to prevent individuals with a serious record of violent
crimes from unlawfully possessing frearms and committing
additional violent crimes. As amended in 1986, the Act gen-
erally mandates a minimum 15-year prison sentence for any
felon who has amassed at least three prior convictions for a
“violent felony” and then commits a fourth felony by unlaw-
fully possessing frearms.
ACCA defnes the predicate “violent felony” offenses to
cover, among other things, an offense punishable by a prison
term exceeding one year that “has as an element the use,
attempted use, or threatened use of physical force against
3
Voting to affrm petitioner's sentence here would lead to a 5 to 4 judg-
ment that petitioner's sentence is correct even though fve Justices con-
clude that Tennessee reckless aggravated assault does not satisfy the ele-
ments clause. That kind of fractured reasoning would be diffcult for
lower courts to apply.
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v. UNITED STATES
Kavanaugh, J., dissenting
the person of another.” 18 U. S. C. § 924(e)(2)(B)(i) (empha-
sis
added). By defning violent felony in that manner,
Congress ensured that the prototypical felonies involving
physical force against a person—in particular, assault, homi-
cide, rape, and robbery—would qualify as predicate offenses
under ACCA.
ACCA does not ensnare low-level offenders or small-time
criminals. Rather, as relevant here, ACCA applies only to
individuals who have been previously convicted of three sep-
arate violent felonies committed on different occasions, and
who then proceed to commit a fourth felony by unlawfully
possessing frearms. Congress determined that those serial
violent felons pose serious risks of harm to American com-
munities and warrant a 15-year mandatory minimum sen-
tence under ACCA.
1
In this case, Charles Borden was convicted in 2018 for un-
lawfully possessing a frearm in violation of § 922(g)(1). The
District Court concluded that Borden was subject to ACCA
because of his three prior convictions in 2002, 2003, and 2007
for aggravated assault under Tennessee law.
2
Borden does not dispute that his 2002 and 2003 Tennessee
felony convictions—which were for intentional or knowing
aggravated assault—constituted violent felonies for pur-
poses of ACCA. But he challenges the classifcation of his
2007 Tennessee felony conviction—which was for reckless
aggravated assault. Borden argues that reckless felonies do
1
ACCA also includes serious drug offenses as qualifying predicates. 18
U. S. C. § 924(e)(2)(A). That aspect of ACCA is not at issue here.
2
Tennessee's aggravated assault statute provides: “A person commits
aggravated assault who:
“(1) Intentionally or knowingly commits an assault as defned in § 39–
13–101 and:
“(A) Causes serious bodily injury to another; or
“(B) Uses or displays a deadly weapon; or
“(2) Recklessly commits an assault as defned in § 39–13–101(a)(1), and:
“(A) Causes serious bodily injury to another; or
“(B) Uses or displays a deadly weapon.” Tenn. Code Ann. § 39–13–102
(2003).

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451
Kavanaugh, J., dissenting
not qualify as predicate offenses under ACCA. According
to
Borden, a crime committed recklessly, such as reckless
assault or reckless homicide, does not entail the “use of phys-
ical force against the person of another.” Instead, Borden
contends, only intentional or knowing felonies satisfy that
statutory defnition.
Most States criminalize reckless assault and reckless
homicide. And the Model Penal Code and most States pro-
vide that recklessness as to the consequences of one's actions
generally suffces for criminal liability. Importantly, more-
over, Borden does not dispute that ACCA's phrase “use of
physical force” on its own would include reckless offenses,
such as reckless assault or reckless homicide. But Borden
nonetheless contends that ACCA's phrase “use of physical
force against the person of another” somehow excludes those
same reckless offenses, including reckless assault and reck-
less homicide.
To put Borden's argument in real-world terms, suppose
that an individual drives a car 80 miles per hour through a
neighborhood, runs over a child, and paralyzes her. He did
not intend to run over and injure the child. He did not know
to a practical certainty that he would run over and injure
the child. But he consciously disregarded a substantial and
unjustifable risk that he would harm another person, and he
is later convicted in state court of reckless assault. Or sup-
pose that an individual is in a dispute with someone in the
neighborhood and begins fring gunshots at the neighbor's
house to scare him. One shot goes through the window and
hits the neighbor, killing him. The shooter may not have
intended to kill the neighbor or known to a practical cer-
tainty that he would do so. But again, he consciously disre-
garded a substantial and unjustifable risk that he would
harm someone, and he is later convicted in state court of
reckless homicide.
Surprisingly, the Court today holds that those kinds of
reckless offenses such as reckless assault and reckless homi-
cide do not qualify as ACCA predicates under the use-of-
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force clause. The plurality does not dispute that those of-
fenses
involve the “use of physical force,” but concludes that
those offenses do not involve the “use of physical force
against the person of another.” The plurality reaches that
rather mystifying conclusion even though someone who acts
recklessly, as those examples show, has made a “deliberate
decision to endanger another,” Voisine v. United States, 579
U. S. 686, 694 (2016), and even though an individual who com-
mits a reckless assault or a reckless homicide generally in-
ficts injury or death on another person. The plurality
reaches that conclusion even though most States (both as
of 1986 and today) criminalize reckless assault and reckless
homicide as offenses against the person, and even though
Congress enacted ACCA's use-of-force clause in 1986 to
cover the prototypical violent crimes, such as assault and
homicide, that can be committed with a mens rea of reckless-
ness. And the plurality reaches that conclusion even though
the Court concluded just fve years ago (when interpreting
a similarly worded domestic violence statute) that reckless
offenses such as reckless assault and reckless homicide do
entail the use of physical force against another person—
there, “against a domestic relation” or “victim.” See id., at
698; 18 U. S. C. § 921(a)(33)(A).
In my view, the Court's decision disregards bedrock princi-
ples and longstanding terminology of criminal law, miscon-
strues ACCA's text, and waves away the Court's own recent
precedent. The Court's decision overrides Congress's judg-
ment about the danger posed by recidivist violent felons who
unlawfully possess frearms and threaten further violence.
I respectfully dissent.
3
3
Just to explain today's lineup: Four Justices form the plurality. Jus-
tice Thomas concurs in the judgment. He agrees with the plurality's
result but not its reasoning, and concludes that the phrase “use of phy-
sical force” alone excludes reckless offenses such as reckless assault or
reckless homicide. The Court reached a different conclusion in interpret-
ing a similarly worded statute in Voisine v. United States, 579 U. S. 686
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453
Kavanaugh, J., dissenting
I
The
Court holds that the phrase “use of physical force
against the person of another” in ACCA's violent felony
defnition applies only to crimes that entail an intentional or
knowing use of force against another person, not to crimes
that entail a reckless use of force against another person.
In reaching that conclusion, the plurality does not dispute
that the statutory phrase “use of physical force” on its own
would encompass reckless offenses such as reckless assault
and reckless homicide. See ante, at 428–429; see also Voi-
sine v. United States, 579 U. S. 686 (2016). But the plurality
seizes on the additional phrase “against the person of an-
other.” According to the plurality, the combined statutory
phrase “use of physical force against the person of another”
excludes reckless offenses such as reckless assault and reck-
less homicide.
As a matter of textual interpretation, that analysis is seri-
ously fawed for two independent reasons, either of which
suffces to defeat the plurality's conclusion. First, the
phrase “against the person of another” in criminal statutes
like ACCA has zero to do with mens rea. That phrase in-
(2016). But Justice Thomas indicates that he will not follow that prece-
dent in this case. (Importantly, unlike the plurality, Justice Thomas
does not rely on the phrase “against the person of another.”)
Justice Thomas further explains that reckless offenses were covered
by ACCA under the residual clause. But that clause was declared uncon-
stitutional in Johnson v. United States, 576 U. S. 591 (2015). Although
Justice Thomas disagrees with Johnson, he indicates that he will today
follow the Court's Johnson precedent, albeit not the Voisine precedent.
So we fnd ourselves in an unusual situation. In Voisine, seven Justices
agreed that the phrase “use of physical force” in a similarly worded statute
covers reckless offenses. And eight Justices today accept that the phrase
“use of physical force” covers reckless offenses. Moreover, fve Justices
today agree that ACCA's text, properly interpreted, would cover reckless
offenses. And only four Justices conclude that the phrase “against the
person of another” addresses mens rea and excludes reckless offenses.
Yet despite all of that, Borden prevails, and reckless offenses are now
excluded from ACCA's scope. That outcome is anomalous.
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stead refects a centuries-old term of art in the criminal law
that
distinguishes offenses against the person from offenses
against property. Second, even if the phrase “against the
person of another” did not refect a longstanding term of art,
the ordinary meaning of the statutory phrase “use of physical
force against the person of another”—just like the phrase
“use of physical force”—encompasses reckless offenses such
as reckless assault and reckless homicide.
A
First, and most fundamentally, the phrase “against the
person of another” in ACCA has zero to do with the required
mens rea for predicate violent felonies. That phrase simply
incorporates established nomenclature for classifying crimes
and refects a longstanding criminal-law term of art that dis-
tinguishes offenses against the person from offenses against
property. As the Government explains, that phrase simply
“limits the scope” of the use-of-force clause to “crimes involv-
ing force applied to another person, thereby excluding many
property crimes, like arson.” Brief for United States 23.
When Congress “borrows terms of art in which are accu-
mulated the legal tradition and meaning of centuries of prac-
tice,” we generally assume that Congress “knows and adopts
the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken.”
Morissette v. United States, 342 U. S. 246, 263 (1952); see also
Air Wisconsin Airlines Corp. v. Hoeper, 571 U. S. 237, 248
(2014); Sekhar v. United States, 570 U. S. 729, 733 (2013); A.
Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 73–77, 305 (2012).
So it is here. For centuries, criminal offenses have typi-
cally been broken down into categories—including, most
promi nently, offenses agai nst the person and offenses
against property.
An offense against the person is often defned as a “crime
against the body of another human being.” Black's Law
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455
Kavanaugh, J., dissenting
Dictionary 1302 (11th ed. 2019) (“offense against the per-
son”).
The object of the offense is a person. Those offenses
include, for example, assault, homicide, rape, and robbery.
An offense against property is often defned as a “crime
agai nst another 's persona l proper ty. ” Ib i d. (“offense
against property”). The object of the offense is property.
Those offenses include, for example, burglary, arson, extor-
tion, fraud, and destruction of property.
That nomenclature has a long historical pedigree originat-
ing in the common law. Blackstone, for example, sets forth
various categories of “Public Wrongs,” which include “Of-
fences against the Persons of Individuals” and “Offences
against Private Property.” 4 Commentaries on the Laws of
England, chs. 15, 17 (1769) (emphasis in original); see also H.
Stephen, Summary of the Criminal Law (1834) (setting forth
categories of criminal offenses including “Offences against
the Person” and “Larceny and Other Offences against Prop-
erty”); W. Auckland, Principles of Penal Law (2d ed. 1771)
(setting for th categor ies of cr imina l offenses i ncludi ng
“[o]ther Crimes relative to the Persons of Individuals” and
“Crimes relative to Property”).
Those classifcations remain prevalent today. Like Black-
stone, most state criminal codes categorize criminal offenses
and employ the terminology of offenses against the person
and offenses against property.
4
4
See Ala. Code, Tit. 13A, chs. 6, 7 (2015); Alaska Stat., Tit. 11, chs. 41,
46 (2018); Ark. Code Ann., Tit. 5, subds. 2, 4 (1983); Cal. Penal Code Ann.,
pt. 1, Tits. 8, 13 (West Cum. Supp. 2021); Colo. Rev. Stat., Tit. 18, Arts. 3,
4 (2019); Del. Code Ann., Tit. 11, pt. I, ch. 5, subchs. II, III (2021); Ga.
Code Ann., Tit. 16, chs. 5, 7 (2019); Haw. Rev. Stat., Tit. 37, chs. 707, 708
(2014); Ill. Comp. Stat., ch. 720, Act 5, Tit. III, pts. B, C (West 2018); Ind.
Code, Tit. 35, Arts. 42, 43 (2020); Kan. Stat. Ann., ch. 21, Arts. 54, 58
(2020); La. Rev. Stat. Ann., Tit. 14, ch. 1, pts. 2, 3 (2016); Me. Rev. Stat.
Ann., Tit. 17–A, pt. 2, ch. 9 (2006); Md. Crim. Law Code Ann., Tits. 3, 6
(2012); Mass. Gen. Laws, pt. IV, Tit. 1, chs. 265, 266 (2017); Minn. Stat., ch.
609 (2020); Miss. Code Ann., Tit. 97, chs. 3, 17 (2020); Mo. Rev. Stat., Tit.
38, ch. 565 (2016); Mont. Code Ann., Tit. 45, chs. 5, 6 (2020); Neb. Rev. Stat.,
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That was also true back in 1986 when Congress amended
A
CCA to include the use-of-force clause. Tennessee's crimi-
nal code illustrates the point. As of 1986, criminal offenses
under Tennessee law fell under one of several chapter head-
ings, including “Offenses Against the Person” and “Offenses
Against Property,” among others. See Tenn. Code Ann.,
Tit. 39, chs. 2, 3 (1982). At least 32 other state criminal
codes employed similar nomenclature at the time of ACCA's
amendment in 1986.
5
ch. 28, Arts. 3, 5 (2021); Nev. Rev. Stat., Tit. 15, chs. 200, 205 (2017); N. J.
Stat. Ann., Tit. 2C, subd. 2, pts. 1, 2 (2019); N. Y. Penal Law Ann., ch. 40,
pt. 3, Tits. H, I (2009); N. C. Gen. Stat. Ann., ch. 14, subchs. III, V (2019);
N. D. Cent. Code Ann., Tit. 12, pts. V, VI (2012); Okla. Stat., Tit. 21, pts.
III, VII (2011); Ore. Rev. Stat., Tit. 16, chs. 163, 164 (2019); S. C. Code
Ann., Tit. 16, chs. 3, 11 (2015); Tenn. Code Ann., Tit. 39, chs. 13, 14 (2020);
Tex. Penal Code Ann., Tits. 5, 7 (West 2021); Utah Code Ann., Tit. 76, chs.
5, 6 (2017); Va. Code Ann., Tit. 18.2, chs. 4, 5 (2014); W. Va. Code Ann., ch.
61, Arts. 2, 3 (2020); Wis. Stat., chs. 940, 943 (2016); Wyo. Stat. Ann., Tit.
6, chs. 2, 3 (2019).
5
See Ala. Code, Tit. 13A, chs. 6, 7 (1982); Alaska Stat., Tit. 11, chs. 41,
46 (1983); Ark. Code Ann., Tit. 41, Arts. 5, 6 (Cum. Supp. 1985); Cal. Penal
Code Ann., pt. I, Tits. 8, 13 (1984); Colo. Rev. Stat., Tit. 18, Arts. 3, 4
(1986); Del. Code Ann., Tit. 11, pt. 1, ch. 5, subchs. II, III (1979); Ga. Code
Ann., Tit. 16, chs. 5, 7 (1984); Haw. Rev. Stat., Tit. 37, chs. 707, 708 (1985);
Ill. Ann. Stat., Tit. III, pts. B, C (West 1980); Ind. Stat. Ann., Tit. 35, Arts.
42, 43 (1985); Kan. Stat. Ann., ch. 21, Arts. 34, 37 (1981); La. Rev. Stat.
Ann., Tit. 14, ch. 1, pts. II, III (West 1986); Me. Rev. Stat. Ann., Tit.
17–A, ch. 9 (1983); Mass. Gen. Laws, chs. 265, 266 (1986); Minn. Stat., ch.
609 (1986); Miss. Code Ann., Tit. 97, chs. 3, 17 (1973); Mo. Rev. Stat., Tit.
38, ch. 565 (1986); Mont. Code Ann., Tit. 45, chs. 5, 6 (1985); Neb. Rev.
Stat., ch. 28, Arts. 3, 5 (1979); Nev. Rev. Stat., Tit. 15, chs. 200, 205 (1986);
N. J. Stat. Ann., Tit. 2C, subd. 2, pts. 1, 2 (1982); N. Y. Penal Law Ann.,
ch. 40, pt. 3, Tits. H, I (West 1975); N. C. Gen. Stat. Ann., ch. 14, subchs.
III, V (1981); Okla. Stat., Tit. 21, pts. III, VII (1983); Ore. Rev. Stat., Tit.
16, chs. 163, 164 (1985); Pa. Stat. Ann., Tit. 18, pt. II, Arts. B, C (Purdon
1983); S. C. Code Ann., Tit. 16, chs. 3, 11 (1985); Tex. Penal Code Ann.,
Tits. 5, 7 (West 1984); Utah Code Ann., Tit. 76, chs. 5, 6 (Cum. Supp. 1986);
Va. Code Ann., Tit. 18.2, chs. 4, 5 (1982); W. Va. Code Ann., ch. 61, Arts.
2, 3 (1984); Wis. Stat., chs. 940, 943 (1982); Wyo. Stat. Ann., Tit. 6, chs. 2,
3 (1983).
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The Model Penal Code, which was adopted in 1962, like-
w
ise uses that nomenclature. The Code identifes two broad
categories of crimes as “Offenses Involving Danger to the
Person” and “Offenses Against Property.” ALI, Model
Penal Code, pt. II (1980).
Leading treatises on criminal law similarly group most of-
fenses into those two broad categories: “Offenses Against the
Person” and “Offenses Against Property.” 2–3 W. LaFave,
Substantive Criminal Law, pts. III, IV (3d ed. 2018); 2 C.
Torcia, Wharton's Criminal Law, pt. II (15th ed. 1994); 3 id.,
pt. V (1995); see also 2 W. LaFave & A. Scott, Substantive
Criminal Law, chs. 7, 8 (1986) (“Crimes Against the Person”
and “Crimes Relating to Property”); 2 Torcia, Wharton's
Criminal Law, pt. II (14th ed. 1979) (“Offenses Against the
Person”); 3 id., pt. V (1980) (“Offenses Against Property”).
As those many examples show, the phrase “offenses
against the person” may be worded in slightly different
ways, but each variation serves to distinguish offenses
against the person from other kinds of offenses, including
offenses against property. Cf. Black's Law Dictionary, at
1302 (cross-referencing defnition of “offense against the per-
son” with “crimes against persons”).
In 1986, Congress amended ACCA to cover violent felon-
ies. Not surprisingly, ACCA's defnition of “violent felony”
tracks that historically rooted and still common nomencla-
ture. The defnition provides in relevant part:
“[T]he term `violent felony' means any crime punishable
by imprisonment for a term exceeding one year . . .
that—
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.”
18 U. S. C. § 924(e)(2)(B) (emphases added).
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The frst clause of the violent felony defnition (the use-of-
force
clause) encompasses offenses involving force against
the person—and thus necessarily includes assault, homicide,
rape, and robbery.
6
The second clause of that defnition (the
enumerated-offenses clause) lists certain physically risky of-
fenses against property—in particular, burglary, arson, ex-
tortion, and offenses involving the use of explosives. See
Taylor v. United States, 495 U. S. 575, 584–587 (1990).
This Court's precedents have drawn that same distinction
when analyzing ACCA's violent felony defnition. In Begay
v. United States, for example, the Court stated that violent
felonies under ACCA “include both crimes against the per-
son (clause (i)) and certain physically risky crimes against
property (clause (ii)).” 553 U. S. 137, 144 (2008).
The statutory history further illustrates the distinction.
When originally enacted in 1984, ACCA covered only rob-
bery (an offense against the person) and burglary (an offense
against property). 18 U. S. C. App. § 1202(a) (1982 ed., Supp.
II). In 1986, Congress expanded the scope of violent crimes
covered under ACCA. Congress added the use-of-force
clause so as to encompass not just robbery but also additional
offenses against the person, such as assault, homicide, and
rape. And Congress added the second clause to encompass
not just burglary but also some additional physically risky
offenses against property, including arson, extortion, and use
of explosives.
7
6
The words “of another” in the use-of-force clause exclude crimes in-
volving harm to oneself, as opposed to others, and refect common phrase-
ology in state criminal statutes covering offenses against the person, such
as assault. See, e. g., Tenn. Code Ann. § 39–13–102 (aggravated assault is
an assault that, among other things, “[c]auses serious bodily injury to
another”).
7
That understanding of offenses against the person and offenses against
property also helps make more sense of the now-defunct residual clause.
See Johnson, 576 U. S. 591. The residual clause was tacked onto the clause
enumerating the covered offenses against property (burglary, arson, ex-
tortion, and use of explosives). The residual clause covered crimes that
“otherwise involv[e] conduct that presents a serious potential risk of physi-
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459
Kavanaugh, J., dissenting
In short, the phrase “against the person of another” in
A
CCA specifes the category of crimes to which the use-of-
force clause applies and limits the reach of the clause by ex-
cluding other categories of crimes—in particular, crimes
against property.
That understanding of the phrase “against the person of
another” also helps to make sense of other, similarly worded
statutory defnitions. Take 18 U. S. C. § 16(a), which defnes
the term “crime of violence” for purposes of many other fed-
eral criminal and immigration laws. That defnition in-
cludes any “offense that has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another.” Ibid. (emphasis added). Like
ACCA's use-of-force clause, § 16(a)'s “against” phrase simply
specifes the category of offenses to which the statute ap-
plies, using established nomenclature. The only difference
between the two defnitions is that § 16(a) covers crimes
“against property” in addition to crimes “against the
person.”
8
cal injury to another.” 18 U. S. C. § 924(e)(2)(B)(ii). When still extant,
the residual clause could have been read in one of two ways. On one
reading, given its placement with offenses against property, the residual
clause could have been read to encompass other physically risky offenses
against property similar to burglary, arson, extortion, and use of explo-
sives. A second possible reading (and the common reading when the re-
sidual clause was still in effect) was that the residual clause also covered
some offenses against the person, not just offenses against property. But
even assuming that second reading was correct, and that there was poten-
tial overlap between the use-of-force clause and the residual clause, the
solution was not to read the use-of-force clause contrary to its terms. No
one disputes that the use-of-force clause generally covers assault and hom-
icide, among other crimes. The residual clause was merely residual—a
catchall. Therefore, as relevant here, even if assault and homicide could
theoretically have ft under the old residual clause, that would not negate
coverage of assault and homicide under the use-of-force clause.
8
The plurality says that reading ACCA's “against” phrase to refer to
the category of covered offenses would leave the broader language in stat-
utes like § 16(a) “without any function.” Ante, at 433. That is incorrect.
The “against” phrase in statutes like § 16(a) clarifes that the statutory
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v. UNITED STATES
Kavanaugh, J., dissenting
Finally, state practice confrms that the phrase “against
the
person of another” in ACCA refects a longstanding term
of art and is not an oblique and novel way of excluding reck-
less offenses. As of 1986, when Congress amended ACCA to
include the use-of-force clause, 28 States had reckless assault
statutes, and more than 30 States had statutes that covered
reckless homicide. See Brief for United States 19–21, and
nn. 4–7. Most of those States classifed those crimes as of-
fenses against the person, see n. 5, supra—even though those
crimes only required a mens rea of recklessness.
Congress legislated against the backdrop of those state
criminal laws. It strains credulity to say that in ACCA,
Congress both (i) mirrored the traditional “against the per-
son” terminology from those state criminal codes that in-
cluded reckless assault and reckless homicide, but (ii) none-
theless si lently i ntended that common and traditi ona l
language to take on a novel and obscure meaning that would
exclude reckless assault and reckless homicide. As the
Court has stated before, we “should not lightly conclude that
Congress enacted a self-defeating statute.” Quarles v.
United States, 587 U. S. –––, ––– (2019); see also Stokeling v.
United States, 586 U. S. –––, ––– (2019). If Congress in 1986
wanted to exclude from ACCA's scope all of those state crim-
inal laws covering reckless crimes against the person—in-
cluding reckless assaults and reckless homicides—Congress
easily could have said (and surely would have said) that only
“intentional or knowing ” uses of force were covered. It did
not. And we should not disregard the longstanding mean-
ing of a criminal-law term of art—namely, offenses against
the person—to smuggle into ACCA a new and unusual mens
rea requirement that Congress did not see ft to include.
The plurality claims that the exact words “offense against
the person” or “crime against the person” do not appear in
ACCA's use-of-force clause. Ante, at 434–437. But in fact,
defnition encompasses both of those traditional categories of offenses: of-
fenses against the person and offenses against property.
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Kavanaugh, J., dissenting
Congress used the phrase “against the person of another”
i
n the use-of-force clause to describe the “crime[s]” that are
covered by ACCA. § 924(e)(2)(B). By using that language,
Congress incorporated a historically rooted and widely used
nomenclature for classifying crimes, and thus narrowed the
category of offenses to which that clause applies—namely, to
offenses against the person.
To sum up: The plurality does not dispute that reckless
offenses entail the “use of physical force.” The plurality ar-
gues, however, that reckless offenses do not entail the “use
of physical force against the person of another.” But the
phrase “against the person of another” refects longstanding
criminal-law nomenclature—a term of art—that specifes the
category of covered predicate offenses that involve the use
of force, such as assault, homicide, rape, and robbery. That
language has zero to do with the mens rea required for pred-
icate offenses under ACCA. That conclusion should end this
case given that the plurality acknowledges that the phrase
“use of physical force” otherwise encompasses reckless of-
fenses such as reckless assault and reckless homicide.
B
Second, in the alternative, even if we divorce the phrase
“against the person of another” from its term-of-art usage in
criminal law, as the plurality mistakenly does, that phrase as
a matter of ordinary meaning still does not speak to mens
rea and cannot reasonably be read to exclude reckless of-
fenses such as reckless assault and reckless homicide. In-
stead, as the Court recognized in Voisine v. United States in
interpreting a “similarly worded” statute covering the “use
of physical force,” ACCA's use-of-force clause is “indifferent
as to whether the actor has the mental state of intention,
knowledge, or recklessness” with respect to the conse-
quences of using force. 579 U. S., at 693, 694–695, n. 4.
To understand the ordinary meaning of the phrase “use of
physical force against the person of another,” frst consider
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v. UNITED STATES
Kavanaugh, J., dissenting
that the criminal law ordinarily imposes criminal liability
when
the defendant acts with intent, knowledge, or reckless-
ness as to the consequences of his actions. A person acts
intentionally (or said otherwise, purposefully) with respect
to the harmful consequences of his actions if he has those
consequences as his “conscious object.” Model Penal Code
§ 2.02(2)(a)(i) (1985). A person acts knowingly with respect
to the harmful consequences of his actions if he is “aware
that it is practically certain that his conduct will cause” those
consequences. Id., § 2.02(2)(b)(ii). And a person acts reck-
lessly “when he consciously disregards a substantial and un-
justifable risk” that his conduct will result in harm to an-
other person. Id., § 2.02(2)(c).
The line between knowing and reckless crimes is thin.
The difference between (i) conduct with knowledge as to the
consequences on the one hand and (ii) conduct with reckless-
ness as to the consequences on the other hand is that the
risk of harm associated with knowledge is somewhat higher
than the risk of harm associated with recklessness. In par-
ticular, to act with knowledge that harm will occur, a defend-
ant must know that harm is “practically certain” to occur.
Id., § 2.02(2)(b)(ii). To act with recklessness as to whether
harm will occur, a defendant need not know with practical
certainty that harm will occur—but he still must know that
he is disregarding a substantial and unjustifable risk that
harm will occur. Id., § 2.02(2)(c). In other words, he must
make a “deliberate decision to endanger another.” Voisine,
579 U. S., at 694. As has long been recognized, the differ-
ence between knowledge and recklessness as to the conse-
quences of one's actions is one of degree, not of kind.
9
9
Indeed, a study published in 2011 concluded that individuals had diff-
culty “differentiat[ing] between knowing and reckless conduct, even with
the beneft of jury instructions.” Shen et al., Sorting Guilty Minds, 86
N. Y. U. L. Rev. 1306, 1309 (2011). The authors suggested possibly “aban-
doning ” the distinction because of the inability of most people to distin-
guish the two categories with respect to particular fact patterns. Ibid.
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Kavanaugh, J., dissenting
Reckless conduct is not benign. Reckless conduct “in-
volves
conscious risk creation,” Model Penal Code § 2.02,
Comment 3, p. 236 (1985)—a “deliberate decision to endanger
another,” Voisine, 579 U. S., at 694. And a person who en-
gages in, for example, reckless assault or reckless homicide
generally injures or kills another person.
10
Because the line between knowledge and recklessness can
be thin and because reckless crimes such as reckless assault
and reckless homicide involve a “deliberate decision to en-
danger another” that results in injury or death to another
person, ibid., the criminal law ordinarily does not draw the
line for criminal liability between intent and knowledge on
the one hand and recklessness on the other. On the con-
trary, as the Model Penal Code explains, “[n]o one has
doubted” that a reckless mental state is “properly the basis
for criminal liability.” § 2.02, Comment 4, at 243; see gener-
ally Turner, The Mental Element in Crimes at Common Law,
6 Camb. L. J. 31 (1936).
Recognizing that basic principle, the Model Penal Code
establishes recklessness as the default minimum mens rea
for criminal offenses when a mental state is not specifed.
§ 2.02, Comment 5, at 244. If a more culpable mental state,
such as intent or knowledge, is required for a criminal of-
fense, “it is conventional to be explicit.” Ibid. Keep that
last sentence in mind when we return to ACCA's text.
Like the Model Penal Code, many States establish reck-
lessness as a default minimum mens rea for criminal of-
fenses.
11
And like the Model Penal Code, most States' crim-
10
If a state offense labeled as assault did not require that the defen-
dant cause suffcient contact with or injury or death to another person,
such an offense presumably would not involve a “use of physical force”
under ACCA. Of course, it could still constitute a violent felony under
ACCA if the offense entailed the threatened or attempted use of physical
force.
11
See, e. g., Alaska Stat. § 11.81.610(b) (1983); Ark. Stat. § 41–204(2)
(1977); Del. Code Ann., Tit. 11, § 251(b) (1979); Haw. Rev. Stat. § 702–204
(1985); 2 Ill. Rev. Stat., ch. 38, ¶¶4–3(a), 4–6 (1985); Kan. Stat. Ann. § 21–
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v. UNITED STATES
Kavanaugh, J., dissenting
inal laws in 1986 provided (and today still provide) that
recklessness
as to the consequences of a defendant's conduct
often suffces to impose criminal liability, including as to as-
sault and homicide. See, e. g., Brief for United States 19–
20, and nn. 4–5 (state reckless assault statutes); 2 LaFave,
Substantive Criminal Law § 15.4(a), and p. 712, n. 19 (2018)
(manslaughter). As of 1986, when Congress amended
ACCA to include the use-of-force clause, 28 States had reck-
less assault statutes, and more than 30 States had statutes
that covered some form of reckless homicide. See Brief for
United States 19–21, and nn. 4–7.
Importantly, nothing in ACCA's text or context (or its his-
tory, for that matter) states or even hints that Congress
sought to exclude reckless offenses against the person, such
as reckless assault and reckless homicide, from the use-of-
force clause. Recall that the Model Penal Code says that
“it is conventional to be explicit” when a legislature wants
to exclude reckless offenses from criminal liability. § 2.02,
Comment 5, at 244. ACCA contains no such explicit lan-
g uage excluding reckless offenses. The text of ACCA
should not be read to silently exclude reckless offenses such
as reckless assault and reckless homicide.
12
5202(a) (2011); N. D. Cent. Code Ann., § 12.1–02–02(1)(e), (2) (1985); Ohio
Rev. Code Ann. § 2901.21(B) (Lexis 2014); Pa. Stat. Ann., Tit. 18, § 302
(Purdon 1983); Tenn. Code Ann. § 39–11–301(c) (Cum. Supp. 1990); Tex.
Penal Code Ann. § 6.02(c) (West 1974); Utah Code Ann. § 76–2–102 (Cum.
Supp. 1989).
12
ACCA's statutory history further supports that conclusion. In 1984,
in the original version of ACCA, Congress included only one offense
against the person: robbery. 18 U. S. C. App. § 1202(a) (1982 ed., Supp. II).
ACCA expressly defned robbery as a felony that involves the “taking of
the property of another from the person or presence of another by force
or violence.” § 1202(c)(8). At the time, as had been true at common law,
see 4 W. Blackstone, Commentaries on the Laws of England 241–242
(1769), many state statutes defned robbery in a way that did not require
that the defendant have intent or knowledge that his conduct would cause
bodily injury. In 1986, when Congress expanded the number of violent
offenses against the person so as to include crimes such as assault, rape,
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465
Kavanaugh, J., dissenting
In short, in enacting ACCA, “Congress must have known
it
was sweeping in some persons who had engaged in reck-
less conduct.” Voisine, 579 U. S., at 695–696 (citing United
States v. Bailey, 9 Pet. 238, 256 (1835) (Story, J.)).
Consistent with those background principles of mens rea,
the ordinary meaning of the phrase “use of physical force
against the person of another” in ACCA encompasses reck-
less offenses such as reckless assault or reckless homicide.
The plurality today acknowledges that the phrase “use of
physical force” would include reckless offenses. But accord-
ing to the plurality, ACCA's phrase “use of physical force
against the person of another” does not include reckless of-
fenses. To distinguish the two, the plurality emphasizes the
word “against.” As the plurality acknowledges, however,
the word “against” is often defned to mean “ `mak[ing] con-
tact with.' ” Ante, at 430. That is the logical meaning of
“against” in the context of ACCA's use-of-force clause, and
that meaning would encompass reckless assaults and reck-
less homicides.
The plurality disagrees, and stresses that the word
“against” in isolation can mean either “ `in contact with' ” or
“ `[i]n opposition to,' ” depending on context. Ante, at 430–
431. The plurality contends that the meaning of “against”
in the context of the phrase “use of physical force against
the person of another” carries the word's “oppositional”
defnition and thus excludes reckless offenses.
13
and homicide in addition to robbery, Congress did not suggest that it sud-
denly wanted to require intent or knowledge for robbery offenses. If
Congress understood reckless robbery as a taking by force under the 1984
language, it follows that Congress would naturally also have understood
reckless robbery as the use of physical force against the person of another
under the 1986 statute. And there is no good reason (textual or other-
wise) to think that Congress wanted to include reckless robbery but to
exclude reckless assault and reckless homicide from the use-of-force clause.
13
The plurality also equates “in opposition to” with “targeting.” Ante,
at 430–432. But the plurality cites no dictionaries or similarly authorita-
tive support for that subtle move in its analysis. The plurality's equating
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v. UNITED STATES
Kavanaugh, J., dissenting
The plurality chooses the “in opposition to” defnition be-
cause
it says, in essence, that it would be incoherent or gib-
berish to say that someone recklessly used force against an-
other person. But the plurality is wrong about that. As a
matter of ordinary meaning, it is perfectly natural to say
that someone recklessly used force against another person.
14
State and federal reporters, for example, are replete with
references to individuals recklessly using force against oth-
ers. See, e. g., Neil v. Warden, Noble Correctional Inst.,
2020 WL 489326, *30 (SD Ohio, Jan. 30, 2020) (“The indict-
ments also charged that in attempting or committing a theft
offense or in feeing immediately after the attempt or of-
fense, appellant recklessly used or threatened the immediate
use of force against another”).
15
of “in opposition to” with “targeting ” is seemingly woven out of whole
cloth.
14
Indeed, the plurality eventually seems to acknowledge that point.
After dedicating pages to asserting that the ordinary meaning of the
phrase “use of physical force against the person of another” necessarily
requires conduct that is intentionally or knowingly directed at another
person, the plurality concedes that if the word “recklessly” appeared in
ACCA's use-of-force clause, then that clause would in fact “cover reckless
offenses.” Ante, at 437. That is a surprising acknowledgment. It is hard
to square with the plurality's suggestion that it is not possible for one to reck-
lessly use physical force against another person. After all, if the plural-
ity's ordinary meaning argument were correct, adding the word “reck-
lessly” to the front of the use-of-force clause would seem to render that
clause nonsensical. My reading of the statute avoids that incongruity in
the plurality's interpretation by recognizing that the phrase “use of physi-
cal force against the person of another” encompasses reckless offenses.
15
For just a few examples, see Almonte v. Hines, 2020 WL 1164657, *2
(SDNY, Mar. 11, 2020) (“Plaintiff had not proved by a preponderance of
the evidence that Hines intentionally or recklessly used excessive force
against Almonte during the arrest”); Evanston Ins. Co. v. Break I, Inc.,
2019 WL 2995507, *7 (ND Ala., July 9, 2019) (“The security guard inten-
tionally or recklessly used force against a person without her consent by
shooting a gun at the male patron and hitting Ms. Beasley”); O'Hara v.
New York, 570 Fed. Appx. 21, 24 (CA2 2014) (“[A] jury could have reason-
ably found” “that McAvoy intentionally or recklessly used excessive force

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467
Kavanaugh, J., dissenting
Most tellingly, if one wants to fnd a really good example
of
the ordinary meaning, look no further than the Court's
opinion in Voisine fve years ago. There, the Court stated
twice in its opinion—in the frst and last paragraphs—that
the use-of-force statute at issue there covered offenses where
an individual recklessly used physical force “against a do-
mestic relation.” 579 U. S., at 698; see also id., at 688. The
Voisine Court found it entirely ordinary to employ the
phrase “ `use . . . of physical force' against a domestic rela-
tion”—in other words, use of physical force against another
person—to describe reckless assaults. Id., at 698–699.
If the plurality today were correct that a use of force
“against” another can only be intentional or knowing, then
the Court in Voisine surely would not have adopted the exact
formulation of recklessly using force “against a domestic re-
lation.” Res ipsa loquitur.
The plurality today simply shrugs off the language from
Voisine. Ante, at 443–444, n. 9. But the plurality cannot
rewrite ordinary meaning. And as Voisine's choice of lan-
guage demonstrates, the ordinary meaning of the phrase
“use of physical force against the person of another,” such
as against a domestic relation, easily encompasses reckless
against O'Hara”); Whitlock v. Jackson, 754 F. Supp. 1394, 1400 (SD Ind.
1991) (“[T]he due process claim required a fnding that the defendants
`unreasonably and recklessly used excessive force' against Gaisor”); State
v. Tyson, 2011–Ohio–4981, 2011 WL 4488955, *6 (Ohio App., Sept. 29, 2011)
(“[T]he State was required to prove that appellant recklessly used or
threatened the immediate use of force against Mr. Carter”); State v.
Adams, 2010–Ohio–1942, 2010 WL 1757931, *2 (Ohio App., May 3, 2010)
(“[T]he State was required to prove that appellant `recklessly used or
threatened the immediate use of force' against Stoops”); Cook v. State,
2005–0475, p. 3 (La. App. 1 Cir., 2/10/06), 928 So. 2d 589, 591 (“The jury
found that Arton did not intentionally or recklessly use excessive force
against Cook”); David v. State, 123 P. 3d 1099, 1103 (Alaska App. 2005)
(“[A] jury could not convict him of second-degree murder without also
fnding that he had used reckless or criminally negligent force against
the victim”).
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offenses, including reckless assault and reckless homicide.
(More
on Voisine later.)
More generally, the plurality's linguistic efforts to seize on
the word “against” to scale back ACCA do not make a lot of
sense. Consider two points. First, a use of force must be
against someone or something. And second, as Voisine
stated and Borden acknowledges, you can recklessly use
force. Put those two points together and the resulting con-
clusion is irrefutable: One can recklessly use force against
the person of another (or against the property of another).
As relevant here, the ordinary meaning of the phrase “use
of physical force against the person of another” thus covers
reckless offenses such as reckless assault and reckless
homicide.
Lest there be any doubt, keep in mind that we are talking
about reckless offenses such as reckless assault or reckless
homicide where a defendant made a deliberate decision to
endanger another by using force, and as a result injured or
killed someone. Applying ordinary meaning and employing
a modicum of common sense, one would say that such a de-
fendant used force against the victim. If an individual fres
a gun recklessly at a house and injures someone inside, that
individual has used force against the victim. If an individ-
ual 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 defes common sense
and the English language to suggest otherwise.
To appreciate the ordinary meaning of the phrase “use of
physical force against the person of another,” look also at
some of the cases cited by the plurality today. See ante,
at 439–440. In People v. Hall, a highly experienced skier
careened down a slope at dangerously high speeds, out of
control, until he crashed into an unsuspecting skier. See 999
P. 2d 207 (Colo. 2000). The “force of the impact” when Hall
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Kavanaugh, J., dissenting
collided with the victim was so great that it “fractured the
th
ickest part of the victim's skull” and caused traumatic
brain injuries, resulting in the victim's death. Id., at 211.
The feeing shoplifter in Craver v. State leapt over the
second-foor railing in a mall during normal business hours,
while people were milling about in the area below. See 2015
WL 3918057, *1 (Tex. Crim. App., June 25, 2015). The shop-
lifter landed directly on top of an elderly woman, breaking
her back. Id., at *2.
And in Seaton v. State, a police offcer blew through a red
light without braking or activating his lights or sirens, col-
lided with another car at a speed of about 100 miles per hour,
ricocheted into another person who was standing nearby, and
killed that bystander. See 385 S. W. 3d 85, 88 (Tex. Crim.
App. 2012).
All of those offenses entail the use of physical force against
another person. True, the skier who crashed into an inno-
cent bystander on the slopes did not intend or know with
practical certainty that he would hit that bystander with
such force that it would crack his skull. The shoplifter who
vaulted himself over a second-foor railing may not have in-
tended or known with practical certainty that he would slam
into an unsuspecting shopper below. And the offcer who
drove through the red light at 100 miles per hour may not
have intended or known with practical certainty that he
would lose control and kill another person.
But the defendants in those cases did not merely “pay in-
suffcient attention to the potential application of force.”
Ante, at 432. Instead, each of those defendants acted reck-
lessly and thus made “a deliberate decision to endanger an-
other.” Voisine, 579 U. S., at 694. Each of them con-
sciously disregarded the obvious dangers that their volitional
conduct—high-speed skiing, jumping off a second-foor rail-
ing, or speeding at 100 miles per hour in a car without lights
or sirens—posed to anyone unfortunate enough to cross their
paths. See id., at 693. Each of those defendants knew that

470 BORDEN
v. UNITED STATES
Kavanaugh, J., dissenting
the people around them would have to be really lucky to
get
out of the way. And in ordinary parlance, each of those
defendants used force against their victims when they made
physical contact with those victims as a direct result of their
reckless behavior—that is, of their deliberate decision to en-
danger another.
***
To sum up, the plurality's reading of the statutory phrase
“against the person of another” fails for two alternative and
independent reasons. First, that phrase is a term of art that
limits the category of offenses covered by ACCA's use-of-
force clause to those involving force against the person
rather than against property. It does not serve as a round-
about way of heightening the mens rea requirement for vio-
lent felonies to intent or knowledge. Second, and in the al-
ternative, even if the phrase “against the person of another”
is not a term of art, the ordinary meaning of that phrase
encompasses reckless offenses such as reckless assault and
reckless homicide.
16
II
All of that is more than enough to resolve this case. But
in addition to all of that, the Court's recent precedent in Voi-
sine v. United States convincingly demonstrates that ACCA
covers reckless offenses such as reckless assault and reck-
less homicide.
As noted above, the Court in Voisine concluded that the
phrase “use of physical force” in a similarly worded statutory
provision encompasses reckless offenses, as well as inten-
tional or knowing offenses. 579 U. S. 686 (2016). Voisine
established two key points. First, Voisine confrmed that
16
The plurality asserts that my two alternative and independent inter-
pretations of the use-of-force clause are “mutually inconsistent.” Ante,
at 434. But the point of alternative arguments is to explain that there
may be two different ways of looking at an issue (which may differ from
one another in certain respects), but that both ways of looking at the issue
lead to the same bottom line. So it is here.
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Kavanaugh, J., dissenting
reckless offenses such as reckless assault and reckless homi-
cide
entail the use of physical force against another person—
there, against a domestic relation or victim. Second, con-
trary to the plurality's analysis today, Voisine explained that
the Court's prior decision in Leocal v. Ashcroft, 543 U. S. 1
(2004), meant simply that negligent offenses do not involve
the use of physical force for purposes of statutes such as
ACCA.
First, Voisine confrmed that reckless offenses involve the
use of physical force against another person—in that case,
against a “domestic relation” or “victim.” In Voisine, the
Court addressed a subsection of § 922(g) that bars individu-
als from possessing frearms if they have been convicted of
a misdemeanor crime of domestic violence. See 18 U. S. C.
§ 922(g)(9). The statute defnes “misdemeanor crime of do-
mestic violence” as a misdemeanor that “has, as an element,
the use or attempted use of physical force” and was com-
mitted against a “victim” who was in a domestic relationship
with the defendant. § 921(a)(33)(A); see also Voisine, 579
U. S., at 689.
17
The question in Voisine was whether that statutory def-
nition “applies to reckless assaults, as it does to knowing
or intentional ones.” Id., at 691. The Court held that the
statute applied to reckless assaults.
The Court in Voisine began by describing bedrock crimi-
nal law principles. Pointing to the Model Penal Code, the
Court explained that a person acts recklessly with regard to
17
Section 921(a)(33)(A) provides in relevant part: “[T]he term `misde-
meanor 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 cohabiting with or
has cohabited with the victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or guardian of the victim.”
(Footnote omitted.)
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the consequences of his actions if he “ `consciously disre-
gard[
s]' a substantial risk that the conduct will cause harm
to another.” Ibid. (quoting Model Penal Code § 2.02(2)(c)).
The Court stated that even though such a person does not
intend or know to a practical certainty that harm will result,
he nonetheless makes “a deliberate decision to endanger an-
other.” Voisine, 579 U. S., at 694. And the Court noted
that recklessness as to the consequences of one's actions ordi-
narily suffces for criminal liability.
The Court then concluded that the phrase “use of physical
force” in § 921(a)(33)(A) does not require that a defendant
intend or know that his conduct will cause harm. Instead,
it is enough that he recklessly employs force—that is, acts in
“conscious disregard” of a “substantial risk of causing harm.”
Id., at 694. For example, a man who “throws a plate in
anger against the wall near where his wife is standing ” has
used force against his wife even if the man “did not know for
certain (or have as an object)” that “a shard from the plate
would ricochet and injure his wife.” Id., at 693. It suffces
that the man “recognized a substantial risk” that his forceful
act would harm his wife. Ibid. That example, the Court
explained, illustrated that the statute was “indifferent as to
whether the actor has the mental state of intention, knowl-
edge, or recklessness with respect to the harmful conse-
quences of his volitional conduct.” Ibid.
In Voisine, to have committed a qualifying misdemeanor
crime of domestic violence, the defendant must have used
force against a “victim,” to use the statute's term, often
against the defendant's spouse or partner. As the Voisine
Court stated, reckless assault in the domestic violence con-
text entails “the `use . . . of physical force' against a domestic
relation” even though a defendant who acts recklessly does
not intend or know to a practical certainty that his use of
force will harm that domestic relation. Id., at 698 (emphasis
added). In other words, the Court agreed that a reckless
assault entails the use of physical force against the person
of another (there, “against a domestic relation” or “victim”).

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Voisine's conclusion applies equally to ACCA's violent fel-
ony
defnition. The two defnitions share critical features.
Both defnitions apply in the context of § 922(g)'s ban on pos-
session of frearms by individuals convicted of certain of-
fenses. Both defnitions apply to offenses that have as an
element the “use of physical force.”
The only distinction between those two defnitions is that
ACCA employs the phrase “use of physical force against the
person of another” while § 921(a)(33)(A) employs the phrase
“use of physical force” and then makes clear that force must
be used against a “victim” who is a domestic relation. But
that distinction makes no difference for mens rea purposes.
The Court in Voisine took as a given that the object of the
reckless conduct would be another person—the “victim” as
the statute describes it. See id., at 689, 691, 694, 695,
696, 698–699. Indeed, given that Voisine involved a domes-
tic violence statute, it would have been unnecessary or even
redundant to add the words “against the person of another”
to the statute. After all, a domestic violence offense, such
as assault, is necessarily an offense against the person of
another. Recognizing that reality, the Voisine Court explic-
itly stated that the “federal ban on frearms possession ap-
plies to any person with a prior misdemeanor conviction for
the `use . . . of physical force' against a domestic relation.”
Id., at 698 (quoting § 921(a)(33)(A); emphasis added); see also
id., at 688.
Contrary to what the plurality today seems to think, Voi-
sine did not create some imaginary world where one could
recklessly use force, but one could not recklessly use force
against another person. On the contrary, Voisine explicitly
recognized that one could recklessly use force “against a do-
mestic relation”—that is, against another person.
18
18
To be sure, to avoid a Second Amendment problem, the defendant in
Voisine also argued that the statute at issue there should not be inter-
preted to prohibit the possession of frearms by someone who had com-
mitted a single reckless misdemeanor offense. See 579 U. S., at 698, n. 6;
see also id., at 713–714 (Thomas, J., dissenting). But there is no such
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Voisine alone should have made this case very straightfor-
ward.
In the wake of Voisine, most Courts of Appeals to
consider the issue certainly thought it was. They responded
to Voisine by applying its analysis to ACCA's violent felony
defnition.
19
As Chief Judge Sutton cogently explained in
relying on Voisine to interpret the phrase “use of physical
force against the person of another”: “Voisine's key insight
is that the word `use' refers to `the act of employing some-
thing ' and does not require a purposeful or knowing state of
mind. That insight does not change if a statute says that
the `use of physical force' must be `against' a person, prop-
erty, or for that matter anything else. . . . Sometimes the
simplest explanati on is the best explanati on. ” Un i ted
States v. Verwiebe, 874 F. 3d 258, 262–263 (CA6 2017) (cita-
tions omitted).
But today, the plurality tries to disappear Voisine's use of
the phrase “against a domestic relation” from the U. S. Re-
ports. Seeking to erase that phrase from Voisine with a
footnoted “mea culpa,” the plurality today concludes that the
additional phrase “against the person of another” in ACCA
means that ACCA's use-of-force clause does not cover reck-
less crimes, even though the statute at issue in Voisine did.
Ante, at 442–445, and n. 9. The plurality's attempt to re-
write Voisine does not persuade. As noted above, Voisine
held that reckless offenses such as reckless assault and reck-
less homicide entail the “use of physical force,” and the Voi-
sine opinion further explained that those reckless offenses
constitutional issue lurking in this case. This case involves a sentencing
enhancement, not primary liability, and applies only when the defendant
has been convicted of three prior ACCA violent felonies committed on
different occasions and has then committed a fourth felony by unlawfully
possessing frearms.
19
See, e. g., United States v. Burris, 920 F. 3d 942, 951 (CA5 2019);
United States v. Haight, 892 F. 3d 1271, 1280–1281 (CADC 2018); United
States v. Pam, 867 F. 3d 1191, 1207–1208 (CA10 2017); United States v.
Fogg, 836 F. 3d 951, 956 (CA8 2016).
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entail the use of physical force against the person of an-
other—namely
, “against a domestic relation” or “victim.”
Second, as Voisine fully explained, the Court's prior deci-
sion in Leocal concluded only that negligent offenses do
not involve the use of physical force for purposes of ACCA.
Leocal, 543 U. S., at 9, 13; see also Voisine, 579 U. S., at 694.
Leocal addressed whether a driving-under-the-infuence of-
fense that required only a negligent mental state fell within
§ 16(a)'s defnition of “crime of violence.” The Leocal Court
held that it did not. The phrase “use . . . of physical force
against the person or property of another,” the Court rea-
soned, is “most naturally” read to suggest “a higher degree
of intent than negligent or merely accidental conduct.” 543
U. S., at 9 (internal quotation marks omitted). As the Court
explained: “While one may, in theory, actively employ some-
thing in an accidental manner, it is much less natural to say
that a person actively employs physical force against another
person by accident.” Ibid.
The Leocal Court took care, however, to reserve the ques-
tion we confront today—namely, whether offenses requiring
“proof of the reckless use of force against the person or prop-
erty of another” would qualify under a statutory defnition
like § 16(a). Id., at 13 (emphasis in original).
As Voisine later explained, the critical mens rea dividing
line in statutes requiring the use of force is the line “between
accidents and recklessness”—a distinction that “Leocal itself
recognized.” 579 U. S., at 694. Accidents or negligence do
not involve the use of force because such conduct is not voli-
tional. Ibid. But reckless behavior, like throwing a plate
against a wall or fring a gun at a house, is different and does
involve the use of force. After all, the “harm such conduct
causes is the result of a deliberate decision to endanger an-
other—no more an `accident' than if the `substantial risk'
were `practically certain.' ” Ibid.
As a matter of history, theory, and practice in criminal law,
the line drawn by Voisine and Leocal between recklessness
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and negligence is much more salient than the line drawn by
the
plurality today between knowledge and recklessness.
An individual who consciously disregards a substantial risk
of a harmful result has a culpable state of mind and has made
a deliberate decision to endanger another, even if it is not
practically certain the harmful result will occur. And for
that reason, to reiterate, the Model Penal Code and most
States draw the ordinary line of criminal culpability between
recklessness and negligence, not between knowledge and
recklessness.
Rather than acknowledge Leocal's narrow holding on neg-
ligence as distinct from recklessness, knowledge, and intent,
the plurality today focuses on Leocal's observation that the
“critical aspect” of § 16(a)'s “crime of violence” defnition is
that it requires the “ `use . . . of physical force against the
person or property of another.' ” 543 U. S., at 9 (quoting
§ 16(a); emphasis in original). By the plurality's account
today, Leocal's analysis of § 16(a)'s “against” phrase—which
was missing from the statute at issue in Voisine—confrms
that ACCA's materially similar “against” phrase is the “criti-
cal text for deciding the level of mens rea needed.” Ante,
at 443 (internal quotation marks omitted).
But Leocal never focused on the term “against the person
or property of another” in isolation. It focused on the full
phrase “use of physical force against the person or property
of another.” 543 U. S., at 9. And Leocal said that negli-
gence does not entail such a use of force.
Indeed, the Court in Voisine already made that same point
about Leocal. Voisine recognized that the statute in Leocal,
like the “similarly worded” statute in Voisine, “hing[ed] on
the `use' of force.” 579 U. S., at 695, n. 4. The Voisine
Court distinguished Leocal solely on the ground that an acci-
dent or negligence cannot be considered an “ `active employ-
ment' ” of force, whereas reckless assault does entail an ac-
tive employment of force. 579 U. S., at 694. As Chief
Judge Sutton correctly pointed out, Voisine “tellingly placed
no weight on the absence of `against the person or property
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Kavanaugh, J., dissenting
of another' ” in distinguishing the statute at issue in Voisine
from
the statute at issue in Leocal. Verwiebe, 874 F. 3d, at
263. All of Voisine's lengthy analysis of Leocal would have
been entirely unnecessary if the Voisine Court actually
thought that the phrase “against the person or property of
another” in the Leocal statute distinguished the statute in
Leocal from the statute in Voisine.
Put simply, if the phrase “against the person . . . of an-
other” from the statute in Leocal were actually the “Rosetta
Stone” of mens rea as the plurality today seems to think,
Voisine would have mentioned that point. Verwiebe, 874
F. 3d, at 263. But that distinction is nowhere to be found in
Voisine. For mens rea purposes, Voisine treated a statute
that covered the “use of physical force” the exact same as a
statute that covered the “use of physical force against the
person of another.”
The plurality's double-barreled effort today to (i) erase
Voisine's use of the phrase “against a domestic relation” and
also (ii) sweep away Voisine's analysis of Leocal is something
to behold. In my view, the plurality's opinion today cannot
be squared with what the Court stated just fve years ago
in Voisine.
If this Court were to faithfully apply Voisine's language
and reasoning to this case, as almost all courts of appeals to
consider the issue have done in the wake of Voisine, that
would be the end of the matter. The plurality's decision to
rewrite Voisine today is not convincing, especially when con-
sidered together with the other textual arguments in favor
of the Government's position here.
20
III
To support its analysis, the plurality also relies on ACCA's
“context and purpose.” Ante, at 437. That argument is
likewise unpersuasive, in my respectful view.
20
To reiterate, Justice Thomas declines to follow Voisine and, in doing
so, provides the ffth vote for the Court's decision today.
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Start with context. The plurality focuses on the supposed
ordi
nary meaning of the term “violent felony” in isolation.
The plurality maintains that ACCA's defnition of violent fel-
ony should be construed to “mark out a narrow category of
violent, active crimes.” Ante, at 438. (internal quotation
marks omitted).
To begin with, when a statute explicitly defnes a term,
we generally follow that statutory defnition. See Digital
Realty Trust, Inc. v. Somers, 583 U. S. 149, 160 (2018). In
ACCA, Congress defned the term “violent felony” to include
offenses that involve the “use of physical force against the
person of another.” And as explained above, that defnition
encompasses reckless offenses like reckless assault and reck-
less homicide.
Moreover, reckless assaults and reckless homicides are
violent crimes, as a matter of ordinary meaning. Recklessly
fring a weapon and injuring an unsuspecting victim is vio-
lent. Recklessly throwing bricks off an overpass and killing
a driver passing underneath is violent. Recklessly driving
80 miles per hour through a neighborhood and killing a child
is violent.
The plurality also refers to the phrase “armed career crim-
inal” (the statutory title) in a way that seems to suggest
that an ACCA defendant's predicate violent felonies must be
committed with frearms. See ante, at 438, 444. That is
incorrect. The three predicate felonies must be “violent” as
defned in the statute but can be committed with or without
frearms. Contrary to the plurality's intimations, the stat-
ute penalizes “career criminals” who then unlawfully arm
themselves with frearms. The plurality's subtle reconfgu-
ration of the statutory title for contextual support is off base.
The plurality's related reliance on ACCA's supposed pur-
pose is similarly misplaced. The plurality speculates that
Congress designed ACCA to cover those offenders “who,
when armed, `might deliberately point the gun and pull the
trigger.' ” Ante, at 438 (quoting Begay v. United States, 553
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U. S. 137, 145–146 (2008)). But even assuming that was
Congress'
s only goal in enacting ACCA (recall that ACCA
also covers those whose predicate offenses were serious drug
crimes), the statute expressly defnes the offenders who ft
into that dangerous category—namely, those who have been
convicted of three violent felonies and then unlawfully pos-
sess frearms. Congress's goal of preventing further vio-
lence by recidivist violent felons does not support drawing a
distinction between reckless assault and knowing assault, or
between reckless homicide and knowing homicide.
The plurality also says that Congress did not seek to en-
snare low-level or ordinary criminals. True. But again,
ACCA's 15-year mandatory minimum sentence is triggered
only after a defendant is convicted of not one, not two, but
three violent felonies committed on separate occasions—and
then proceeds to commit a fourth felony by unlawfully pos-
sessing frearms. Such repeated violent conduct is not the
stuff of low-level or ordinary criminals. Even assuming the
plurality's premise that a driver who recklessly kills a pedes-
trian or a parent who recklessly inficts abuse on her children
is not dangerous the frst time around—a doubtful premise
that would be news to many victims—that assumption surely
falls apart after the second and third reckless felony convic-
tions. At that point, the individual has demonstrated a
consistent willingness to deliberately engage in dangerous
behavior that poses an obvious risk of physical harm to oth-
ers. And someone who has been convicted of three reckless
assaults or homicides committed on different occasions—and
then unlawfully possesses frearms—is not a low-level or or-
dinary criminal, but is someone who Congress might have
reasonably feared would commit further violence.
The plurality expresses particular concern over the notion
that interpreting ACCA to cover reckless offenses would
sweep in ordinary reckless driving offenses, like “running a
stop sign or veering onto the sidewalk.” Ante, at 439. But
the plurality does not cite a single case where a reckless
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driving offense not involving injury to others has been
counted
as an ACCA predicate. That is not surprising be-
cause routine reckless driving statutes often do not require
injury to others and thus would not qualify as a “use of phys-
ical force” under ACCA. It is only when the reckless driver
causes harm to another and is convicted of an offense akin
to reckless assault or reckless homicide that the offense typi-
cally would come within ACCA.
Notably, in citing what it implies are benign reckless driv-
ing offenses, the plurality fails to mention that the driver
who blew through a stop sign in State v. Gillon collided with
another vehicle, killing one person and injuring two others.
See 15 S. W. 3d 492, 496–497 (Tenn. Crim. App. 1997). And
the driver who erratically veered onto a sidewalk in State v.
Graham drove “straight toward” another vehicle and
crashed into it, leaving the driver of the vehicle “lying face
frst outside of the passenger side of his vehicle” “screaming
in pain.” 2008 WL 199851, *2 (Tenn. Crim. App., Jan. 24,
2008). The accident left the victim “unable to walk for three
months” after the crash. Ibid. As with the other sanitized
examples the plurality cites today, it strains credulity to sug-
gest that the drivers in either of those cases did not use
force against their victims—or that they could not fairly be
considered “career criminals” if convicted of those kinds of
violent felonies on three separate occasions.
In discussing context and purpose, the plurality also tries
to further distinguish Voisine by saying that Voisine in-
volved a prior offense of domestic violence, whereas this case
involves prior offenses of assault. Ante, at 444. But Con-
gress wanted to prohibit thrice-convicted violent criminals
from unlawfully possessing frearms at least as much as it
wanted to prohibit misdemeanor domestic violence offenders
from unlawfully possessing frearms. Voisine cannot be dis-
tinguished on purposive grounds.
Finally, in discussing context and purpose, the plurality
alludes several times to the 15-year mandatory minimum

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Kavanaugh, J., dissenting
sentence in ACCA. (The mandatory minimum seems to
loom
very large as an infuence on the plurality's overall anal-
ysis here.) But that mandatory minimum sentence comes
into play only after four separate felony convictions, three of
them for violent felonies and a fourth for unlawfully possess-
ing frearms. ACCA's mandatory minimum sentence is not
a basis for interpreting the statute contrary to its best read-
ing. Moreover, Congress is attuned to the issue and has
taken many steps in recent years to recalibrate sentencing,
address mandatory minimums, and target those who most
deserve substantial sentences. It is not our role to rewrite
Congress's sentencing laws just because we might disagree
with Congress or think that Congress is not moving quickly
enough to enact new sentencing laws.
In short, ACCA's context and purpose, properly read,
strongly support what the statutory text and precedent al-
ready establish: An individual who commits three reckless
assaults or homicides and then unlawfully possesses fre-
ar ms fa l ls wel l w ith i n the class of people that ACCA
encompasses.
IV
The Court's decision today will generate a variety of
serious collateral effects that further underscore the implau-
sibility of the plurality's statutory interpretation.
First, because the States defne reckless assault and reck-
less homicide to cover a range of conduct, the Court's
decision will exclude from ACCA many defendants who have
committed serious violent offenses. Consider just a few ex-
amples, but keep in mind that there are thousands more:
• During the course of a fght, a defendant shot another
man in the chest and killed him. A jury found the defend-
ant guilty of second-degree reckless homicide. State v.
Jackson, 2012 WL 4799459, *1 (Wis. App., Oct. 10, 2012).
• A defendant had been drinking in a parking lot with sev-
eral others and then attacked another person with a
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knife. The knife attack resulted in a “ten-inch long,
`gapi
ng ' laceration” that “went down to the depth of the
victim's ribs, through two layers of muscle and through
his interior abdominal wall.” The defendant was con-
victed of reckless aggravated assault. State v. Farrar,
2002 WL 560959, *1–*2 (Tenn. Crim. App., Apr. 16, 2002).
• At a party, a defendant picked up a friend's gun, pointed
it directly at another person's head, and pulled the trig-
ger. The evidence adduced at trial established that the
defendant had recklessly disregarded a known risk that
the gun was loaded. The defendant was convicted of
reckless homicide. State v. Gough, 2009–Ohio–322, 2009
WL 180298, *1–*2 (App., Jan. 26, 2009).
• A defendant savagely beat his victim “without provoca-
tion,” causing the victim to suffer “hearing loss, missing
teeth, impaired vision and impaired memory.” The de-
fendant was convicted of reckless aggravated assault.
State v. McAmis, 2010 WL 2244124, *4 (Tenn. Crim.
App., June 4, 2010).
In each of the above examples, the defendant's mental state
for the state-law offense was determined to be recklessness.
Under the Court's decision today, however, not one of those
defendants committed a “violent felony” for purposes of
ACCA because they supposedly did not commit an offense
that necessarily entailed the use of force against the person
of another.
And it gets worse. Under the Court's decision, even
second-degree murder and some forms of manslaughter may
be excluded from ACCA. That is because, in many States,
some forms of second-degree murder and manslaughter do
not require intent or knowledge. The idea that those of-
fenses would fall outside of ACCA's scope is, as one judge
aptly put it, “ `glaringly absurd.' ” United States v. Begay,
934 F. 3d 1033, 1047 (CA9 2019) (N. R. Smith, J., dissenting
in part). Something has gone badly astray when this Court
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Kavanaugh, J., dissenting
is suggesting that second-degree murder and manslaughter
might
not involve the “use of physical force against the per-
son of another.”
21
Second, the Court's decision will exclude even some con-
victions for intentional and knowing assaults. That is be-
cause several States criminalize felony assault in a single,
indivisible provision that can be satisfed by intent, knowl-
edge, or recklessness.
22
Because courts use the categorical
approach when applying ACCA's violent felony defnition,
the Court's decision today will thus exclude many intentional
and knowing felony assaults from those States.
Consider just one example. In United States v. Esparza-
Herrera, a defendant broke into the house of a woman he
had previously dated, tied her up, and beat her over a four-
hour period, leaving blood on her hands and face, her eyes
swollen shut, and bite marks all over her body. 557 F. 3d
1019, 1021, n. 2 (CA9 2009). The defendant was convicted
21
As the plurality notes, today's decision should not be construed to
express any view on the application of the use-of-force clause to crimes
requiring a mental state of extreme recklessness. See ante, at 429, n. 4.
In my view, crimes committed with extreme recklessness, such as de-
praved-heart murder, should obviously still qualify as predicate offenses
under ACCA, even after today's decision. And indeed, counsel for Borden
forthrightly acknowledged at oral argument that extreme recklessness
crimes, such as depraved-heart murder, can still suffce under ACCA.
See Tr. of Oral Arg. 14–15, 19. But the plurality, for some reason, refuses
to even acknowledge that depraved-heart murder is a violent felony. The
plurality's reticence is telling, and that reticence shows just how far the
plurality's interpretation of this statute has strayed from the statutory
text and basic common sense.
22
See Me. Rev. Stat. Ann., Tit. 17–A, § 208 (Cum. Supp. 2021) (aggra-
vated assault); R. I. Gen. Laws § 11–5–2 (Supp. 2020) (felony assault); Utah
Code Ann. § 76–5–103 (Supp. 2019) (aggravated assault); see also United
States v. Rose, 896 F. 3d 104, 114 (CA1 2018) (although Rhode Island case
law is inconclusive, “it appears possible” that ordinary recklessness suf-
fces for felony assault under R. I. Gen. Law § 11–5–2); State v. Seach, 2021
UT App 22, ¶18, 483 P. 3d 1265, 1271 (Utah Code Ann. § 76–5–103 requires
the State to prove that a defendant acted “intentionally, knowingly, or
recklessly”).
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under a state statute that proscribed “ `intentionally, know-
i
ngly or recklessly' ” causing “ `temporary but substantial
disfgurement.' ” Id., at 1021. Under the Court's decision
today, that offense would not qualify as a violent felony
under ACCA.
Third, after today's decision, attempted and threatened as-
saults and homicides will be covered under ACCA as violent
felonies. But actual assaults and actual homicides that
were committed recklessly will not be covered under ACCA.
It seems incongruous to conclude that ACCA covers at-
tempts or threats to injure others that never get completed
or carried out, but does not cover situations where an indi-
vidual carries through with reckless conduct and leaves a
victim in a hospital or graveyard.
As those points indicate, the Court's decision today will
undermine Congress's sentencing policy. In particular, to-
day's decision will mean that some defendants otherwise sub-
ject to ACCA will leave prison much earlier than Congress
dictated, or avoid ACCA altogether.
23
To some, that may
seem costless or even benefcial. Indeed, the plurality, in
places, seems to doubt the use of the 15-year mandatory min-
imum sentence—even for someone convicted of three sepa-
rate violent felonies and then a fourth for unlawfully possess-
ing frearms. But Congress, not this Court, sets national
sentencing policy for violent crimes. Today's decision over-
rides Congress's policy judgment about the risk posed by
serial violent felons who unlawfully possess frearms. And
today's decisi on w ill have sig nificant rea l-wor ld conse-
quences. After all, as the U. S. Sentencing Commission re-
23
That is to say nothing of the collateral review petitions that will likely
inundate courts in the circuits that relied on Voisine to hold that ACCA
covers reckless offenses. See n. 19, supra. To be clear, defendants who
received an ACCA enhancement based on a reckless felony conviction may
not necessarily prevail on collateral review. For example, many petitions
may fall outside § 2255's 1-year statute of limitations. But there can be
little question that many such petitions will be fled.
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Cite
as: 593 U. S. 420 (2021)
485
Kavanaugh, J., dissenting
cently reported, there is a very high rate of violent crime
recidiv
ism for ACCA defendants released from federal
prison. According to that Sentencing Commission report,
59% of ACCA defendants released between 2009 and 2011
were re-arrested within eight years of their release from fed-
eral prison, most commonly for assault and most commonly
within 18 months of release. See Federal Armed Career
Criminals: Prevalence, Patterns, and Pathways 43–45 (2021).
There is no reason to believe that the would-be ACCA de-
fendants who will receive a lighter sentence after the Court's
decision today will produce signifcantly different recidivism
statistics. Those alarming statistics cannot be ignored, and
they portend some of the human costs of the Court's errone-
ous decision today.
***
In sum, the text of ACCA's use-of-force clause encom-
passes reckless offenses, such as reckless assault and reck-
less homicide. Contrary to the plurality's conclusion today,
the phrase “against the person of another” refects a centuries-
old term of art for classifying crimes and has zero to do with
mens rea. Even setting aside that longstanding usage, the
plurality's interpretation of the phrase “use of physical force
against the person of another” fails as a matter of ordinary
meaning and precedent. I respectfully dissent.
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