[lit-ideas] A Wittgensteinian decision

  • From: Robert Paul <rpaul@xxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Mon, 10 Dec 2007 14:41:34 -0800

[Forwarded by Robert Paul]



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 Argued: October 9, 2007 -- Decided: December 10, 2007
Opinion author: Souter

  After trading a controlled substance for a pistol, petitioner
Watson was indicted for, inter alia, violating 18 U. S.
C. sec.924(c)(1)(A), which sets a mandatory minimum sentence,
depending on the facts, for a defendant who, "during and
in relation to any ... drug trafficking crime[,] ... uses
... a firearm." The statute does not define "uses," but
this Court has spoken to it twice. In holding that "a criminal
who trades his firearm for drugs 'uses' it ... within the
meaning of sec.924(c)(1)," Smith v. United States, 508
U. S. 223 , the Court rested primarily on the "ordinary
or natural meaning" of the verb in context, id., at 228,
understanding its common range as going beyond employment
as a weapon to trading a weapon for drugs, id., at 230.
Later, in holding that merely possessing a firearm kept
near the scene of drug trafficking is not "use" under sec.924(c)(1),
the Court, in Bailey v. United States, 516 U. S. 137 ,
again looked to "ordinary or natural" meaning, id., at
145, deciding that "sec.924(c)(1) requires evidence sufficient
to show an active employment of the firearm by the defendant,
a use that makes the firearm an operative factor in relation
to the predicate offense," id., at 143. Watson pleaded
guilty but reserved the right to challenge the factual
basis for a sec.924(c)(1)(A) conviction and sentence. The
Fifth Circuit affirmed on its precedent foreclosing any
argument that Watson had not "used" a firearm.

  Held: A person does not "use" a firearm under 18 U. S.
C. sec.924(c)(1)(A) when he receives it in trade for drugs.
Pp. 4-9.

  (a) The Government's position lacks authority in either
precedent or regular English. Neither Smith, which addressed
only the trader who swaps his gun for drugs, not the trading
partner who ends up with the gun, nor Bailey, which ruled
that a gun must be made use of actively to satisfy sec.924(c)(1)(A),
decides this case. With no statutory definition, the meaning
of "uses" has to turn on "everyday meaning" revealed in
phraseology that strikes the ear as "both reasonable and
normal." Smith, supra, 228, 230. When Watson handed over
the drugs for the pistol, the officer "used" the pistol
to get the drugs, but regular speech would not say that
Watson himself used the pistol in the trade. Pp. 4-5.

  (b) The Government's first effort to trump ordinary English
is rejected. Noting that sec.924(d)(1) authorizes seizure
and forfeiture of firearms "intended to be used in" certain
crimes, the Government infers that since some of those
offenses involve receipt of a firearm, "use" necessarily
includes receipt of a gun even in a barter transaction.
The Government's reliance on Smith for the proposition
that the term must be given the same meaning in both subsections
overreads Smith. The common verb "use" is not at odds in
the two subsections but speaks to different issues in different
voices and at different levels of specificity. Section
924(d)(1) indicates that a gun can be "used" in a receipt
crime, but does not say whether both parties to a transfer
use the gun, or only one, or which one; however, sec.924(c)(1)(A)
requires just such a specific identification. Pp. 5-7.

  (c) Nor is the Government's second effort to trump ordinary
English persuasive. It claims that failing to treat receipt
in trade as "use" would create unacceptable asymmetry with
Smith; i.e., it would be strange to penalize one side of
a gun-for-drugs exchange but not the other. The problem
is not with Smith, however, but with the limited malleability
of the language it construed, and policy-driven symmetry
cannot turn "receipt-in-trade" into "use." Whatever the
tension between the prior result and the outcome here,
law depends on respect for language and would be served
better by statutory amendment than by racking statutory
language to cover a policy it fails to reach. Pp. 8-9.

  191 Fed. Appx. 326, reversed and remanded.

  Souter, J., delivered the opinion of the Court, in which
Roberts, C. J., and Stevens, Scalia, Kennedy, Thomas, Breyer,
and Alito, JJ., joined. Ginsburg, J., filed an opinion
concurring in the judgment.
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