December 10, 2007

"It is better to receive than to give... at least when the subject is guns."

Justice Ginsburg, concurring, characterizes today's opinion in Watson v. United States:
For reasons well stated by Justice Scalia in his dissenting opinion in Smith, 508 U. S., at 241, I would read the word “use” in §924(c)(1) to mean use as a weapon, not use in a bartering transaction. Accordingly, 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.”).
Everyone else on the Court accepted the distinction between giving and getting. Justice Souter finds "the appeal to symmetry underwhelming":
The problem... is not with the sturdiness of Smith but with the limited malleability of the language Smith 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 (if Congress sees asymmetry) than by racking statutory language to cover a policy it fails to reach.

24 comments:

Simon said...

I should have kept my counsel on my observation about Ginsburg's concurrence for a little while, I guess. ;) I incorporate it by reference. Watson does produce a situation akin to Hein, I suppose, where the law would be left in greater clarity by respectively overruling Smith and Flast, but even within Smith's perimeter, this result is sensible and open. It shouldn't be overlooked that Smith is a statutory decision and as the court observes, "in 14 years Congress has taken no step to modify Smith’s holding, and this long congressional acquiescence has enhanced even the usual precedential force we accord to our interpretations of statutes"; this explains, perhaps, why it was reasonable for Justice Scalia to join today's decision and why it is indefensible for Justice Ginsburg to write her concurrence.

jimbino said...

Here is an example of what has always given me a problem with the idea of "strict construction" of the Constitution. There are all sorts of extra-constitutional rules that are fundamental to its interpretation, just as in biblical exegesis. One has to assume, for example, that a word will mean tomorrow what it means today and what it meant yesterday, just as the scientist has to assume the invariability of natural law, which could never be proven, in order to apply the laws of physics at all.

Simon said...

Jim, what's the Constitutional question in this case?

George said...

LedZep sound check....

Good Times Bad Times
Ramble On
In My Time Of Dying
No Quarter
Nobody's Fault But Mine
D'yer Mak'er
Communication Breakdown

Show starts any minute now....

Wonder if Chief Roberts dug the Zep back in the day....

brylun said...

Simon, Your pointed question seems to have shut down comments on this case involving statutory interpretation, and therefore we are foreclosed from reading the usual intelligent, witty and sometimes ironic comments that characterize the Althouse blog.

As we enter this holiday season, is is better to give than to receive, or is it better to receive than give? This case clearly demonstrates that it may well depend on the circumstances.

Simon said...

Brylun, well, I was just gently teasing Jim, but I think the reality is that you will find very few people who know what they're talking about subscribing to strict construction as a judicial philosophy, and most of the people who are accused of (or praised as) being one categorically reject the label at every opportunity. Why is it that most people's eyes seem to glaze over when it comes to statutory construction? It's not so different to ConLaw; you have a text, and you do more-or-less exactly the same thing: you try to give it the most natural reading that its text would have born when it was enacted, giving undefined terms "the ordinary meaning as of the time of enactment." True, you give the Constitution a more liberal construction than a statute, consistent with Marshall's warning that "the nature of a Constitution "requires[] that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves." But I see the task as being basically the same job: how would a reasonable person have read this text when it was enacted (which is, by the way, why Smith was a totally absurd result, as Justice Scalia's dissent explained).

Simon said...

Sorry, that last remark was neither intelligent nor witty, and so was perhaps at least ironic in the context of a reply to Brylun.

Pogo said...

For those feeling it is better to give than receive, I will gladly provide details of my Amazon account for any and all gifts.

For those preferring to receive over giving, shame on you.

Richard Dolan said...

It's odd that this case (and Smith) turned on the word "use" in §924(c)(1). The statute calls for a statutory minimum sentence in any case where "during and in relation to any crime of violence or drug trafficking crime ... [the defendant] uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm ...."

If the defendant either gave or received a gun as payment, it seems pretty clear that along the way the defendant necessarily "possesse[d] a firearm" and that his "possession" of it was "in furtherance of any such crime." Payment is an essential part of any sale transaction; presumably the parties to the drug transaction knew in advance that payment would be made and accepted, in part, by the tender of a gun. In all events, making or accepting payment is clearly in "furtherance" of the underlying crime of selling illegal drugs.

Thus, it's strange that this case, along with Smith, was decided by focusing on whether the gun was "used" in connection with the drug crime. The Court may have been divided over the proper use of the word "used", but I doubt that they would have been similarly divided over the word "possessed." It doesn't lend itself to getting all balled up with concerns about intent or purpose in the same way.

I haven't gone back to Smith to see whether there was some reason why the Gov't focused on word "use" in §924(c)(1) rather than the word "pssesses." Of course, once the case got to the Supreme Court, the Solicitor General had to defend it on the grounds advanced by the Gov't in the lower courts -- the decision to focus on "use" rather than "possesses" was almost certainly made by the Ass't US Atty in the trial court.

George said...

No matter how I try, I find my way to do the same old jam.

Oh, yeah.

Richard Fagin said...

Did the defendant actually "possess" the gun "in furtherance" of the crime? Wasn't the crime complete at the time the defendant handed over the dope?

Joan said...

George: it's a sign of the pending apocalypse, I'm telling you. (Also: psych!)

Pogo: hee!

EnigmatiCore said...

Tis better for other subjects as well. BJs, for example.

Eli Blake said...

Slighly diverging from the matter of the decision, though, I would like to say that the line

"it is better to receive than to give, at least when the subject is guns"

Does not apply to bullets.

Yesterday a man murdered two people in a missionary center in Arvada, Colorado. The New Life Church in Colorado Springs, Colorado implemented a 'security plan' in which parishoners volunteered to serve as security guards during the church meetings when up to 7,000 people were in the building.

Sure enough, the man who had killed the people 12 hours earlier, identified as Matthew Murray, showed up during Sunday services heavily armed and started shooting at people in the church. He killed two teenage sisters and injured several more.

But, luckily he was intercepted by an armed parishoner (in fact a woman) who had volunteered as a security guard. She shot him once, wounding him and causing him to fall down. When he tried to reach for a weapon she shot him dead. Later it was determined that he had hundreds of rounds of ammunition on him and a number of smoke grenades and possibly some explosive devices.

This could have been another Columbine or Virginia Tech, with dozens of casualties, had everyone in the church been unarmed (as Mr. Murray apparently expected). Instead, it ends at five (the two at the missionary center in Arvada, the two sisters at the church, and the gunman.) That's about half of what the number was the other day in Omaha.

matthew said...

Why is it that most people's eyes seem to glaze over when it comes to statutory construction?

Well, start with the thrust and parry's of Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, and you might get a good idea of why people's eye's roll over.

There has never been a legal area, even in the ConLaw setting, that has so clear a lack of principles than statutory 'interpretation.' There's a good reason why "statutory interpretation" isn't required for lawyers nowadays..., you just can't teach something so unprincipled.

George said...

So then Plant whips out this...

"Ah, ah, ah, ah. Ah, ah, ah, ah, ha, ah, ah, ah, ah, ah, ah, ah, ah, ah, ah, ha, ah, ah, ah, ah, ah, ah, ah, ah. No, no, no, no, ah. Love, love, low-ow-ow-ow-ove. Oh, babe, oh...."

And then Page, holy!....wait...

Is this not the live blog of the Zep show?

Wait. Wait...What?--are you guys talking about the Supreme Court???

Dudes! I am outt-a here....

matthew said...

The best Zepplin song is from the best Zepplin album.

Over the Hills and Far Away from Houses of the Holy. It just doesn't get any better.

And I do live for my dreams, and a pocket full of gold.

Trooper York said...

Martin: Do you ever get so bored, you just stare at your balls?
Jonah: I bet you do, late John Lennon.
(Knocked Up 2007)

Roost on the Moon said...


This could have been another Columbine or Virginia Tech, with dozens of casualties, had everyone in the church been unarmed (as Mr. Murray apparently expected). Instead, it ends at five (the two at the missionary center in Arvada, the two sisters at the church, and the gunman.) That's about half of what the number was the other day in Omaha.


I believe it was Homer Simpson who said, "Alcohol: the cause of and solution to all of life's problems."

Simon said...

Eli, so help me understand this - am I right in assuming that means you're a liberal who's against "gun control"?

Matthew, to my recollection, Llewellyn was tersely but thoroughly debunked by Justice Scalia in AMOI. And in any event, it isn't true that statutory interpretation is bereft of guiding principles - there is a full (if not entirely determinative - it's called "judging" because there's always an element of judgment) toolset readily available,. We can't help it if some judges have yet to see the light. ;)

On the other hand, there's certainly no clear principles for assessing which Led Zep song is best, so while OTH&FA is certainly a contender, as much as Plant may hate it and as much as it's become a cliché, it's got to be Stairway. Doesn't it? I mean, it's definitive, and once you get past the cliché and really listen to it - the delicacy of the recorder melody, the subtlety of the layering and the textures, the poco a poco accelerando, that clever little bass part in the chorus, that slippery shifting time part right before the solo, and of course, the solo itself, the apotheosis of rock guitar, routinely sacrificed by inferior players (including, from time to time, Page himself). My personal favorite, though, is Your Time is Gonna Come - the first time I ever heard Zep was Zep1, and the tape was for some reason at the start of side B. Being lazy, I just pressed play, as Aerosmith once advised listeners, and that majestic organ intro shimmers out of the speakers. That still gives me goosebumps today, mabe fifteen years later. My favorite to play? Ramble On.

George said...

I am, like, really confused.

Is this the Zep board?

My fave LZ tune? I love the scratchy intro to Good Times.

After that, it's all down hill.

Like on a runaway logging truck.

matthew said...

Simon, how could I guess you'd see things Scalia's way =)

I've never read AMOI, though I've read a couple of essays describing his idea of textualism, and a book review of it. Scalia's writings are all quite well thought out, and even espouse a consistent theory that could be practically applied. But I really don't see how they debunk Llewellyn, other than in theory.

Llewellyn was large amounts of case law to show that (mostly) contradictory canons of interpretation have been and cited by judges around the federal circuit. Which means that in practice, it's impossible to figure out what Judge actually look at. Scalia is right in that canons are not necessarily useless, and consistent interpretation could be accomplished. But that hasn't happened. Even Scalia quoted that "[t]he hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation."

Just examine how members of today's court system approach statutory interpretation - Posner and Easterbrook, Souter and Breyer, Thomas, and Scalia all have somewhat different ways of looking at it.

Now if all judges applied Scalia's principles (or 'saw the light' as you put it), then he'd be 100% correct. But in practice, the so-called canons are ill-defined, and "Specific canons 'are often countered ... by some maxim pointing in a different direction.' " Chickasaw Nation v. U.S.
534 U.S. 84. Which was largely Llewellyn's point.

matthew said...

Myself, as a mostly acoustic player, it's a toss up for playing between Stairway, OTH&FA, and White Summer/Black-Mountain Side. And the world will be happy to know that I've never attempted the Stairway solo, lest is be thoroughly sacrificed...

Simon said...

Matthew, I do make a habit of it. ;) I'll happily lend you a copy of AMOI, and even better, I'm pretty sure I somewhere have a PDF copy of the central lecture that it contains - Common Law Courts in a Civil Law System that I could email you. Drop me an email if you're interested, I'll see what I can do.

I'm a bass player, so I'm pretty much happy with all of it. JPJ is an incredible player.