SCOTUS Humpty Dumpty

After overdosing on Democratic primary news recently, we now return to our regularly scheduled programming, which, at the moment, is a memo in support of a post-trial motion to acquit on charges of using a firearm in furtherance of a drug trafficking crime.

In U.S. v. Sumler, 294 F.3d 579, 583 (3d Cir. 2002), the court is discussing what it means to "use" a firearm in connection with 18 U.S.C.S. § 924(c)(1)(A)(i). Specifically, can a person "use" a firearm when that person receives the firearm as payment for drugs? (The SCOTUS has settled the question of whether giving a gun in exchange for drugs is "use," but the circuits are split on the question of receiving.) Eventually, this court says "yes, receiving a gun as payment for drugs is 'use' for purposes of this statute," but along the way it has to respond to the counter-argument that "there  is no grammatically correct way to express that a person receiving a payment is thereby 'using' the payment." United States v. Westmoreland, 122 F.3d (7th Cir. 1997). To this the Sumler court says:

Although we grant legitimacy to that argument, we cannot evade the brute fact that the Supreme Court in both Bailey and Smith explained that the word "use" means "barter." We recall Judge Learned Hand's admonition, "but it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary . . . . " Cabel v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Humpty Dumpty in Lewis Carroll's Through the Looking Glass stated it best when he said, "When I use a word . . . it means just what I choose it to mean neither more nor less." L. Carroll, Through the Looking Glass & What Alice Found There 124, reprinted in Journeys in Wonderland (Derrydale 1979). We too are not free to ignore a dictated definition.

The Third Circuit just compared the Supreme Court to Humpty Dumpty! I'm loving that.

Posted 07:05 AM | law general law school

Thanks, NH

Congratulations to John Kerry, but also to Howard Dean who came back from a pretty serious pummeling to take a strong second. You gotta love this: The only thing positive the AP can find to say about Dean is that he kept his cool after his "loss." That takes for granted that he somehow lost his cool sometime, but I'll leave that argument for the history books. I predict it won't be more than a year or two before we see the books analyzing what happened in the 2004 primaries, and regardless of who wins, when the dust settles even Dean's staunchest critics will be forced to admit that the media's treatment of Dean in the last week was among the least professional, most sensational, and most unfair coverage of a presidential candidate of this race.

Is Dean angry? Brent Simmons and his many readers offer a great discussion of that question with opinions from all sides [link via Scripting News.] Why haven't we seen more thoughtful analysis like this in the mainstream media?

But like I said, it's time to move forward. Dean still leads in delegates and the next few weeks promise many more opportunities for voters around the country to choose who they want to be the next President. Another plus: Bush remains under pressure over the fact that Iraq was not an imminent threat when Bush went to war.

The conventional wisdom is that Kerry's got the best chance to beat Bush. Although I don't understand why people think that, if it turns out to be true -- if Kerry gets the nomination and then wins the White House -- I'll be fairly glad to be proven wrong. My hope has been, and remains, that in Dean we have a candidate who can both beat Bush and really start fixing the things that are broken in American politics. If beating Bush is all we can get, I'll take that, sure; but I still hope for more.

Posted 06:54 AM | Comments (2) | election 2004