What Use Do We Make of 'Use'?

So you're an aging, legally-blind low-life living in a rough neighborhood with some surplus OxyContin hanging around, and you mention to some other low-life that you're looking for a gun to keep the vermin away, and he says he'll get you a gun for some of that Oxycotton, and you make the trade, and your contact ends up being a narc and you're arrested. Would you be surprised if you're given 5 more years due to 'use' of a firearm in the commission of a felony? Michael Watson of Ascension, La. sure was. That question will be argued before the U.S. Supreme Court next week. (See this CS Monitor article on the case.)

Astonishingly, buying drugs with a firearm is already considered 'use' of a gun according to a 1993 Supreme Court opinion (written, not surprisingly, by the queen of illogic, Sandra Day O'Connor). And so the police routinely entrap their prey into 'using' guns as currency in drug transactions so they can get a few extra pounds of flesh out of their quarry. You'd think that in this country we have more than enough criminal laws (and more than enough criminal convictions) that law enforcement wouldn't need to add creative twists to come up with wider legal nets to cast. I guess not.

This case is supposed to be different because the defendant was buying the gun with drugs, not 'using' the gun to buy the drugs. Perhaps the court will use it to roll back the prior decision altogether. Only Kennedy and Thomas remain from the majority that decided the 1993 case (Smith v. U.S.). The three dissenters remain - Stevens, Souter and Scalia*. Interestingly, Scalia wrote the dissent, which Stevens and Souter joined. It's a classic Scalia dissent, making mincemeat of the majority's tortured logic (see here - just Ctrl-f on "Justice Scalia"), pointing out that the only sensible meaning of the word 'use' with a gun is to use it the way a gun is intended to be used - as a weapon. Ginsburg and Breyer are sure to join them this time around, though Roberts might join as well if only to control the opinion and keep it from completely repudiating the government's position. Hopefully Mr. Watson will get some relief - his sure seems like a clearer case of injustice than the prosecution of those thugs in Jena.

* Scalia of course dissented because he believes in following the plain meaning of the statute. He is not as many believe an "original intent" adherent. Nor does he change his philosophy to fit the politics of a case as liberal critics claim.