Smith v. United States, 508 U.S. 223, 21 (1993)

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Cite as: 508 U. S. 223 (1993)

Scalia, J., dissenting

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, Guidelines 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." 2

2 The Court says that it is "not persuaded that [its] construction of the phrase 'uses . . . a firearm' will produce anomalous applications." Ante, at 232. But as proof it points only to the fact that § 924(c)(1) fortuitously contains other language—the requirement that the use be "during and in relation to any crime of violence or drug trafficking crime"—that happens to prevent untoward results. Ibid. That language does not, in fact, prevent all untoward results: Though it excludes an enhanced penalty for the burglar who scratches his head with the barrel of a gun, it requires one for the burglar who happens to use a gun handle, rather than a rock, to break the window affording him entrance—hardly a distinction that ought to make a sentencing difference if the gun has no other connection to the crime. But in any event, an excuse that turns upon the language of § 924(c)(1) is good only for that particular statute. The Court cannot avoid "anomalous applications" when it applies its anomalous meaning of "use a firearm" in other contexts—for example, the Guidelines provision just described in text.

In a vain attempt to show the contrary, it asserts that the phrase "otherwise used" in the Guidelines means used for any other purpose at all (the Court's preferred meaning of "use a firearm"), so long as it is more "culpa-

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