At high court: In a drugs-for-gun deal, is the gun being 'used'?

The issue is coming up more often in sting operations – and has meant more jail time for convicts.

from the October 5, 2007 edition

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The justices must decide whether Watson's brief possession of the gun qualifies as a prohibited "use" in a drug transaction under the federal statute.

The Supreme Court confronted a similar issue in a 1993 case in Florida involving an attempt by a defendant to trade an automatic MAC-10 machine gun for cocaine. The court ruled 6 to 3 that the transaction amounted to "use" under the law.

"The fact that a gun is treated momentarily as an item of commerce does not render it inert or deprive it of destructive capacity," Justice Sandra Day O'Connor wrote for the majority.

But Watson's case is different, says Mr. Stancil. The 1993 Florida case involved a defendant trading his own gun for drugs. Watson's case involves the inverse – a defendant trading his own drugs for a gun.

Stancil says the juxtaposition makes a huge difference in how the high court may interpret the word "use" in the statute.

He offers an example. "It is natural to say I 'used' $1 to buy a cup of coffee," he says. "But it is completely unnatural to say I bought a cup of coffee with $1 and thereby 'used' the coffee."

The lawyer adds, "In the plain and ordinary meaning of the statute, it makes no grammatical sense to say that the buyer has used the object he is trying to purchase simply by completing the transaction."

"By receiving a gun as payment for drugs, Watson did not 'use' that firearm," Stancil writes in his brief to the court. "Because Watson did not 'use' the firearm in any ordinary recognizable sense of the word – let alone 'actively employ' it – his conviction must be reversed."

Firearms' potential harm

Government lawyers disagree.

It was Watson who asked for a gun, says Solicitor General Paul Clement in his brief. "By contributing to the introduction of the firearm into the transaction, [Watson] caused the very harm that Congress sought to avoid in enacting [the gun law]," he says.

"Regardless of which side of the guns-for-drugs barter a defendant is on, the firearm's presence – and its integral role in the drug deal – causes the risk to society that Congress sought to prevent," Mr. Clement says.

Although the Supreme Court resolved the "gun for drugs" issue in 1993 and reaffirmed it in a subsequent decision in 1995, the high court has never directly address the "drugs for gun" issue.

The federal appeals courts are split. Six side with the government's view. Four embrace the approach outlined by Stancil.

When the issue arose at the high court in 1993, the question that divided the justices was whether Congress meant to outlaw the use of guns as weapons.

Justice O'Connor and five other justices rejected that narrow reading of the law. "We … see no reason why Congress would have intended courts and juries applying [the law] to draw a fine metaphysical distinction between a gun's role in a drug offense as a weapon and its role as an item of barter," she said. "It creates a grave possibility of violence and death in either capacity."

Three justices dissented. Justices Antonin Scalia, John Paul Stevens, and David Souter said under the ordinary meaning of the word "use," the statute outlaws the use of a gun as a weapon – not for barter.

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