I’m reading Legislation and Regulation, a law textbook about, among other things, how judges interpret written law (or “statutes”). I’ve been surprised by (1) how many important cases hinge on the reading of a single word in the text of a law, (2) how devoted the Supreme Court is in to trying to understand that single word, and (3) how funny they can be about it.
Here’s an example. Smith v. United States was a Supreme Court case in 1993. The facts of the case are these: A certain John Angus Smith traveled from Tennessee to Florida to buy cocaine, planning to return to Tenneesee and re-sell at a profit. While in Florida, Smith made an offer to someone who was, unbeknowst to him, an undercover cop. The offer was that Smith would trade his MAC-10 submachine gun for two ounces of cocaine.
By the time this case reached the Supreme Court, it was already decided that Smith was guilty of drug trafficking. The question was whether he would get extra jail time, potentially another 30 years, because he, in the words of the relevant law, “during and in relation to any crime of violence or drug trafficking[,] use[d] or carrie[d] a firearm.” The operative question was: did Smith’s offer to trade a gun for drugs mean that he “used a firearm” in relation to a drug trafficking crime?
Smith argued that the phrase “use a firearm” in the law means “use a firearm as a weapon”. Because he did not fire the gun or threaten anyone with his MAC-10, he should not be subject to the extra jail time.
Unfortunately for Smith, the Court’s majority decided that, yes, trading a gun for drugs qualified as “using” a firearm. They said, although this use of a firearm is not the first thing that comes to mind when someone says “use a firearm”, it nevertheless is a “use” of a firearm. As an analogy, they say, consider a cane. If you ask, “Do you use a cane?” the first thing that comes to mind is whether you use a cane as an aid for walking. But, the Court argues, this does not mean that having a decorative cane in your hallway is not a “use” of a cane. They then point out that the most famous “use” of a cane in American history is when Senator Preston Brooks nearly killed Senator Charles Sumner on the floor of the Senate chamber by beating him with his cane in 1856. Indeed, they observe: using a cane as an instrument of punishment was once so common that “to cane” meant “to beat with a cane”.
If this diversion into the history of the cane was not amusing enough, the Court then noted that there are indeed “uses” of a firearm that would not be covered by the text of the law. For example, if a drug trafficker used a gun to scratch his head, this would not constitute a “use” of a firearm in terms of the law because, although scratching one’s head is certainly a “use” of a firearm, such uses do not count “unless [the gun] facilitates or furthers the drug crime […] [T]hat the firearm served to relieve an itch is not enough…” The Court then opines whether, in their reading, pistol-whipping, an offensive use of a firearm that does not involve firing it, would qualify as “use” under the law.
The dissenting Justices start by noting that “use” is such an “elastic” verb that it could be employed in so many ways, noting that “use” in “he uses tobacco” and “he used to smoke tobacco” mean different things. They then addressed the questions of the decorative cane and the head scratching:
When someone asks, “do you use a cane?,” he is not inquiring whether you have your grandfather’s silver-handled walking cane 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. [… However] It would also be reasonable and normal to say that [someone] “used” [a MAC-10] 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 the verb one could select. [… However] It is unquestionably not reasonable and normal, I think, to say simply “do not use firearms” when on means to prohibit selling or scratching with them…
In a footnote, the dissent wrote that it is clear that the ordinary use of “use a firearm” does not include selling it because a witness who “sold his grandfather’s Enfield rifle to a collector” would be justified in answering “no” if asked in court whether he had “ever ‘used a firearm’”. Another reason to think that the law didn’t mean “use” to include “trading” comes from yet another example in the dissent:
[T]he 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,” 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.
It’s interesting to me that, while I’m sure the Court was not intending to be funny per se, that humor arises from the particular examples that they found and used to explore the boundaries of the term “use”. Does it follow that an exploration of the boundaries of a term must inevitably lead to funny examples? Would a non-native English speaker find any of this funny?