244
Scalia, J., dissenting
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 229; they are reasonably implicit. Petitioner is not, I think, seeking to introduce an "additional requirement" into the text, ibid., 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 233-236. I do not agree. We are dealing here not with a technical word or an "artfully defined" legal term,
ble" than brandishing. See ante, at 232. But whence does it derive that convenient limitation? It appears nowhere in the text—as well it should not, since the whole purpose of the Guidelines is to take out of the hands of individual judges determinations as to what is "more culpable" and "less culpable." The definition of "otherwise used" in the Guidelines merely says that it means "more than" brandishing and less than firing. The Court is confident that "scratching one's head" with a firearm is not "more than" brandishing it. See ante, at 233. I certainly agree—but only because the "more" use referred to is more use as a weapon. Reading the Guidelines as they are written (rather than importing the Court's deus ex machina of a culpability scale), and interpreting "use a firearm" in the strange fashion the Court does, produces, see ante, at 232, a full seven-point upward sentence adjustment for firing a gun at a storekeeper during a robbery; a mere five-point adjustment for pointing the gun at the storekeeper (which falls within the Guidelines' definition of "brandished," see USSG § 1B1.1, comment., n. 1(c)); but an intermediate six-point adjustment for using the gun to pry open the cash register or prop open the door. Quite obviously ridiculous. When the Guidelines speak of "otherwise us[ing]" a firearm, they mean, in accordance with normal usage, otherwise "using" it as a weapon—for example, placing the gun barrel in the mouth of the storekeeper to intimidate him.
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007