The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_8674/91_8674.zd

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SUPREME COURT OF THE UNITED STATES
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No. 91-8674
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JOHN ANGUS SMITH, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[June 1, 1993]

  Justice Scalia, with whom Justice Stevens and
Justice Souter join, dissenting.
  Section 924(c)(1) mandates a sentence enhancement for
any defendant who -during and in relation to any crime
of violence or drug trafficking crime . . . uses . . . a
firearm.-  18 U. S. C. 924(c)(1).  The Court begins its
analysis by focusing upon the word -use- in this passage,
and explaining that the dictionary definitions of that word
are very broad.  See ante, at 5.  It is, however, a -funda-
mental principle of statutory construction (and, indeed, of
language itself) that the meaning of a word cannot be
determined in isolation, but must be drawn from the
context in which it is used.-  Deal v. United States, 508
U. S. ___, ___ (1993) (slip op., at 3).  That is particularly
true of a word as elastic as -use,- whose meanings range
all the way from -to partake of- (as in -he uses tobacco-)
to -to be wont or accustomed- (as in -he used to smoke
tobacco-).  See Webster's New International Dictionary
2806 (2d ed. 1939).
  In the search for statutory meaning, we give nontechni-
cal words and phrases their ordinary meaning.  See
Chapman v. United States, 500 U. S. ___, ___ (1991) (slip
op., at 7); Perrin v. United States, 444 U. S. 37, 42 (1979);
Minor v. Mechanics Bank of Alexandria, 1 Pet. 46, 64
(1828).  To use an instrumentality ordinarily means to use
it for its intended purpose.  When someone asks -Do you
use a cane?- he is not inquiring whether you have your
grandfather's silver-handled walking-stick on display in
the hall; he wants to know whether you walk with a cane.
Similarly, to speak of -using a firearm- is to speak of
using it for its distinctive purpose, i.e., as a weapon.  To
be sure, -one can use a firearm in a number of ways,-
ante, at 7, including as an article of exchange, just as one
can -use- a cane as a hall decoration-but that is not the
ordinary meaning of -using- the one or the other.  The
Court does not appear to grasp the distinction between
how a word can be used and how it ordinarily is used.
It would, indeed, be -both reasonable and normal to say
that petitioner `used' his MAC-10 in his drug trafficking
offense by trading it for cocaine.-  Ibid.  It would also be
reasonable and normal to say that he -used- it to scratch
his head.  When one wishes to describe the action of
employing the instrument of a firearm for such unusual
purposes, -use- is assuredly a verb one could select.  But
that says nothing about whether the ordinary meaning of
the phrase -uses a firearm- embraces such extraordinary
employments.  It is unquestionably not reasonable and
normal, I think, to say simply -do not use firearms- when
one means to prohibit selling or scratching with them.
  The normal usage is reflected, for example, in the
United States Sentencing Guidelines, which provide for
enhanced sentences when firearms are -discharged,-
-brandished, displayed, or possessed,- or -otherwise used.-
See, e.g., United States Sentencing Commission, Guide-
lines Manual 2B3.1(b)(2) (Nov. 1992).  As to the latter
term, the Guidelines say: -`Otherwise used' with reference
to a dangerous weapon (including a firearm) means that
the conduct did not amount to the discharge of a firearm
but was more than brandishing, displaying, or possessing
a firearm or other dangerous weapon.-  USSG 1B1.1,
comment., n. 1(g) (definitions).  -Otherwise used- in this
provision obviously means -otherwise used as a weapon.-
  Given our rule that ordinary meaning governs, and
given the ordinary meaning of -uses a firearm,- it seems
to me inconsequential that -the words `as a weapon'
appear nowhere in the statute,- ante, at 5; they are
reasonably implicit.  Petitioner is not, I think, seeking to
introduce an -additional requirement- into the text, ante,
at 6, but is simply construing the text according to its
normal import.
  The Court seeks to avoid this conclusion by referring to
the next subsection of the statute, 924(d), which does not
employ the phrase -uses a firearm,- but provides for the
confiscation of firearms that are -used in- referenced
offenses which include the crimes of transferring, selling,
or transporting firearms in interstate commerce.  The
Court concludes from this that whenever the term appears
in this statute, -use- of a firearm must include nonweapon
use.  See ante, at 10-12.  I do not agree.  We are dealing
here not with a technical word or an -artfully defined-
legal term, compare Dewsnup v. Timm, 502 U. S. ___, ___
(1992) (Scalia, J., dissenting) (slip op., at 2-4), but with
common words that are, as I have suggested, inordinately
sensitive to context.  Just as adding the direct object -a
firearm- to the verb -use- narrows the meaning of that
verb (it can no longer mean -partake of-), so also adding
the modifier -in the offense of transferring, selling, or
transporting firearms- to the phrase -use a firearm-
expands the meaning of that phrase (it then includes, as
it previously would not, nonweapon use).  But neither the
narrowing nor the expansion should logically be thought
to apply to all appearances of the affected word or phrase.
Just as every appearance of the word -use- in the statute
need not be given the narrow meaning that word acquires
in the phrase -use a firearm,- so also every appearance
of the phrase -use a firearm- need not be given the
expansive connotation that phrase acquires in the broader
context -use a firearm in crimes such as unlawful sale of
firearms.-  When, for example, the statute provides that
its prohibition on certain transactions in firearms -shall
not apply to the loan or rental of a firearm to any person
for temporary use for lawful sporting purposes,- 18
U. S. C. 922(a)(5)(B), (b)(3)(B), I have no doubt that the
-use- referred to is only use as a sporting weapon, and not
the use of pawning the firearm to pay for a ski trip.
Likewise when, in 924(c)(1), the phrase -uses . . . a
firearm- is not employed in a context that necessarily
envisions the unusual -use- of a firearm as a commodity,
the normally understood meaning of the phrase should
prevail.
  Another consideration leads to the same conclusion:
924(c)(1) provides increased penalties not only for one
who -uses- a firearm during and in relation to any crime
of violence or drug trafficking crime, but also for one who
-carries- a firearm in those circumstances.  The interpre-
tation I would give the language produces an eminently
reasonable dichotomy between -using a firearm- (as a
weapon) and -carrying a firearm- (which in the context
-uses or carries a firearm- means carrying it in such
manner as to be ready for use as a weapon).  The Court's
interpretation, by contrast, produces a strange dichotomy
between -using a firearm for any purpose whatever,
including barter,- and -carrying a firearm.-
  Finally, although the present prosecution was brought
under the portion of 924(c)(1) pertaining to use of a
firearm -during and in relation to any . . . drug traffick-
ing crime,- I think it significant that that portion is
affiliated with the pre-existing provision pertaining to use
of a firearm -during and in relation to any crime of
violence,- rather than with the firearm-trafficking offenses
defined in 922 and referenced in 924(d).  The word
-use- in the -crime of violence- context has the unmistak-
able import of use as a weapon, and that import carries
over, in my view, to the subsequently added phrase -or
drug trafficking crime.-  Surely the word -use- means the
same thing as to both, and surely the 1986 addition of
-drug trafficking crime- would have been a peculiar way
to expand its meaning (beyond -use as a weapon-) for
crimes of violence.
  Even if the reader does not consider the issue to be as
clear as I do, he must at least acknowledge, I think, that
it is eminently debatable-and that is enough, under the
rule of lenity, to require finding for the petitioner here.
-At the very least, it may be said that the issue is subject
to some doubt.  Under these circumstances, we adhere to
the familiar rule that, `where there is ambiguity in a criminal
statute, doubts are resolved in favor of the defendant.'-
Adamo Wrecking Co. v. United States, 434 U. S. 275,
284-285 (1978), quoting United States v. Bass, 404 U. S.
336, 348 (1971).
  For the foregoing reasons, I respectfully dissent.