Firearm "use" in drug transactions

Some gems from Watson v US No.06-571, 10 December 2007:

“we do not normally speak or write the Government’s way.” per Souter J, delivering the Court’s judgment in Watson, and quoting Lopez v. Gonzales, 549 U. S. (2006) (slip op., at 5).

“The Government may say that a person “uses” a firearm simply by receiving it in a barter transaction, but no one else would.” Souter J.

“I would overrule Smith, and thereby render our precedent both coherent and consistent with normal usage. Cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”).” per Ginsburg J, concurring in Watson.

In Watson, the Supreme Court granted certiorari to resolve a conflict in the Circuit Courts over whether a person “uses” a firearm when he trades drugs in order to obtain a gun.

I have previously noted an interpretation of the word “use”(see blog on 23 July 2007 concerning R v Steele SCC and mentioning Bailey v US) where the issue was whether a gun had been used in the commission of a crime, when its presence was revealed to a victim.

In Watson, the issue, relevant to sentencing, was whether in giving drugs and receiving in exchange a gun the offender had used the gun in the drug trafficking crime. In Smith v. United States, 508 U. S. 223 (1993) it had been held that giving a gun in exchange for drugs was using the firearm. Ginsburg J, as noted above, would have overruled that decision, but the other members of the Court did not think it was necessary to do so, and held that Smith simply did not address the present issue.

The interpretative problem was addressed in this way: “With no statutory definition or definitive clue, the meaning of the verb “uses” has to turn on the language as we normally speak it”. Unsurprisingly, the result was that a gun is not used in the commission of a drug trafficking offence by the person who receives the gun in exchange for the drugs. As Ginsburg J rather wittily put it, “It is better to receive than to give, the Court holds today, at least when the subject is guns.”

Techniques of judicial reasoning are illustrated here in the Court’s treatment of the prosecution’s arguments. I summarise the arguments here, although this may not be particularly intelligible, but it is the form of argument that I am highlighting.

The Government argued that an interpretative clue was provided by a nearby provision in the statute, and also that symmetry favoured its view ( ie both parties to the transaction are responsible for the danger to society posed by the use of the firearm; the danger recognised in Smith was reciprocated here).

The Court dismissed the context point on the ground that the other provision was too vague about who the user of the firearm would be in a transaction and this meant there was no pressure to apply the same meaning to the present provision; and, in any event, applying the same meaning in the different contexts would require overruling an earlier decision – Bailey v. United States, 516 U. S. 137 (1995) – which was unanimous and not challenged by the Government.

The symmetry argument was dismissed on the ground that, not only did it strain language, but also it was weakened by the Government’s pointing out that, in any event, receiving the gun in exchange for drugs would (at least in the Government’s view, the Court left the point open) be within another section which covered possessing a firearm in furtherance of a drug transaction. This “does leave the appeal to symmetry under-whelming in a contest with the English language, on the Government’s very terms.”

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