Muscarello v. United States, 524 U.S. 125, 21 (1998)

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Cite as: 524 U. S. 125 (1998)

Ginsburg, J., dissenting

ous cases—the gun at hand, ready for use as a weapon.7 It

is reasonable to comprehend Congress as having provided mandatory minimums for the most life-jeopardizing gun-connection cases (guns in or at the defendant's hand when committing an offense), leaving other, less imminently threatening, situations for the more flexible Guidelines regime.8 As the Ninth Circuit suggested, it is not apparent why possession of a gun in a drug dealer's moving vehicle would be thought more dangerous than gun possession on premises where drugs are sold: "A drug dealer who packs heat is more likely to hurt someone or provoke someone else to violence. A gun in a bag under a tarp in a truck bed [or in a bedroom closet] poses substantially less risk." United States v. Foster, 133 F. 3d 704, 707 (1998) (en banc).9

For indicators from Congress itself, it is appropriate to consider word usage in other provisions of Title 18's chapter on "Firearms." See Bailey, 516 U. S., at 143, 146 (interpreting § 924(c)(1) in light of 18 U. S. C. §§ 922(g), 922( j), 922(k), 922(o)(1), 924(d)(1), 930(a), 930(b)). The Court, however,

7 In my view, the Government would carry its burden by proving a firearm was kept so close to the person as to approximate placement in a pocket or holster, e. g., guns carried at one's side in a briefcase or handbag, or strapped to the saddle of a horse. See ante, at 130.

8 The Court reports that the Courts of Appeals "have unanimously concluded that 'carry' is not limited to the carrying of weapons directly on the person." Ante, at 131. In Bailey, however, the Government's argument based on a similar observation did not carry the day. See Brief for United States in Bailey v. United States, O. T. 1995, Nos. 94-7448 and 94-7492, p. 16, n. 4. No Court of Appeals had previously adopted an "active employment" construction of "uses . . . a firearm" in § 924(c)(1), yet this Court did exactly that. See 516 U. S., at 144.

9 The "Firearms" statutes indicate that Congress, unlike the Court, ante, at 132-133, recognizes that a gun in the hand is indeed more dangerous than a gun in the trunk. See, e. g., 18 U. S. C. § 926A (permitting the transportation of firearms in a vehicle, but only if "neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle"); see infra, at 146-147.

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