SUPREME COURT OF THE UNITED STATES

No. 91–8674

JOHN ANGUS SMITH, PETITIONER v.

UNITED STATES

on writ of certiorari to the united states court of appeals for the eleventh circuit

[June 1, 1993]

Justice Scalia, with whom Justice Stevens and Justice Souter join, dissenting.

Section 924(c)(1) mandates a sentence enhancement for any defendant who "during and in relation to any crime of violence or drug trafficking crime . . . uses . . . a firearm." 18 U. S. C. §924(c)(1). The Court begins its analysis by focusing upon the word "use" in this passage, and explaining that the dictionary definitions of that word are very broad. See ante, at 5. It is, however, a "fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used." Deal v. United States, 508 U. S. ___, ___ (1993) (slip op., at 3). That is particularly true of a word as elastic as "use," whose meanings range all the way from "to partake of" (as in "he uses tobacco") to "to be wont or accustomed" (as in "he used to smoke tobacco"). See Webster's New International Dictionary 2806 (2d ed. 1939).

In the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning. See Chapman v. United States, 500 U. S. ___, ___ (1991) (slip op., at 7); Perrin v. United States, 444 U. S. 37, 42 (1979); Minor v. Mechanics Bank of Alexandria, 1 Pet. 46, 64 (1828). To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks "Do you use a cane?" he is not inquiring whether you have your grandfather's silver-handled walking-stick 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. To be sure, "one can use a firearm in a number of ways," ante, at 7, including as an article of exchange, just as one can "use" a cane as a hall decoration—but that is not the ordinary meaning of "using" the one or the other. The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used. It would, indeed, be "both reasonable and normal to say that petitioner `used' his MAC–10 in his drug trafficking offense by trading it for cocaine." Ibid. It would also be reasonable and normal to say that he "used" it 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 a 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."

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 5; they are reasonably implicit. Petitioner is not, I think, seeking to introduce an "additional requirement" into the text, ante, at 6, 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 10–12. I do not agree. We are dealing here not with a technical word or an "artfully defined" legal term, compare Dewsnup v. Timm, 502 U. S. ___, ___ (1992) (Scalia, J., dissenting) (slip op., at 2–4), but with common words that are, as I have suggested, inordinately sensitive to context. Just as adding the direct object "a firearm" to the verb "use" narrows the meaning of that verb (it can no longer mean "partake of"), so also adding the modifier "in the offense of transferring, selling, or transporting firearms" to the phrase "use a firearm" expands the meaning of that phrase (it then includes, as it previously would not, nonweapon use). But neither the narrowing nor the expansion should logically be thought to apply to all appearances of the affected word or phrase. Just as every appearance of the word "use" in the statute need not be given the narrow meaning that word acquires in the phrase "use a firearm," so also every appearance of the phrase "use a firearm" need not be given the expansive connotation that phrase acquires in the broader context "use a firearm in crimes such as unlawful sale of firearms." When, for example, the 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," 18 U. S. C. §§922(a)(5)(B), (b)(3)(B), 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. Likewise when, in §924(c)(1), the phrase "uses . . . a firearm" is not employed in a context that necessarily envisions the unusual "use" of a firearm as a commodity, the normally understood meaning of the phrase should prevail.

Another consideration leads to the same conclusion: §924(c)(1) provides increased penalties not only for one who "uses" a firearm during and in relation to any crime of violence or drug trafficking crime, but also for one who "carries" a firearm in those circumstances. The interpretation I would give the language produces an eminently reasonable dichotomy between "using a firearm" (as a weapon) and "carrying a firearm" (which in the context "uses or carries a firearm" means carrying it in such manner as to be ready for use as a weapon). The Court's interpretation, by contrast, produces a strange dichotomy between "using a firearm for any purpose whatever, including barter," and "carrying a firearm."

Finally, although the present prosecution was brought under the portion of §924(c)(1) pertaining to use of a firearm "during and in relation to any . . . drug trafficking crime," I think it significant that that portion is affiliated with the pre-existing provision pertaining to use of a firearm "during and in relation to any crime of violence," rather than with the firearm-trafficking offenses defined in §922 and referenced in §924(d). The word "use" in the "crime of violence" context has the unmistakable import of use as a weapon, and that import carries over, in my view, to the subsequently added phrase "or drug trafficking crime." Surely the word "use" means the same thing as to both, and surely the 1986 addition of "drug trafficking crime" would have been a peculiar way to expand its meaning (beyond "use as a weapon") for crimes of violence.

Even if the reader does not consider the issue to be as clear as I do, he must at least acknowledge, I think, that it is eminently debatable—and that is enough, under the rule of lenity, to require finding for the petitioner here. "At the very least, it may be said that the issue is subject to some doubt. Under these circumstances, we adhere to the familiar rule that, `where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.'" Adamo Wrecking Co. v. United States, 434 U. S. 275, 284–285 (1978), quoting United States v. Bass, 404 U. S.

336, 348 (1971).

For the foregoing reasons, I respectfully dissent.