...Before I begin, I believe it is prudent for me to explain that neither strict constructionist nor textualist is a liberal or conservative term. For some reason, whenever I bring up those terms, it causes folks to focus on those terms, instead of the issue at hand. There are plenty of liberal and conservative strict constructionists and plenty of liberal and conservative textualists. There is also a third category called nontexualists, but I don't know too many people who proudly admit to being in that category.

Second, strict constructionism and textualism deals solely with statutory interpretation, not Constitutional interpretation. For another unknown reason, Constitutional interpretation seems to be really divisive between liberals and conservatives, but statutory interpretation does not seem to be so divisive. Justice Scalia estimates that 4/5ths of the cases that comes before the Supreme Court are solely about federal laws -- no Constitutional interpretation at all. For that reason, I am focusing my post on the non-divisive issue of statutory interpretation. I'm just gauging how each of you believe laws should be interpreted by federal judges.

Without any further ado, the following is an actual case brought before the Supreme Court which I feel is a perfect example of strict constructionism vs. textualism. Please tell me how you would have interpreted the law:

The federal statute at issue provided for an increased jail term if, "during and in relation to...[a] drug trafficking crime," the defendant "uses...a firearm." The defendant in this case sought to purchase a quantity of cocaine, and offered an unloaded firearm in exchange for the cocaine.

Should the defendant be subject to the increased penalty?

If you need more information before you can make a decision, the case is Smith v United States (1993)

Whoops! Sorry about the poll, folks. Apparently, I messed something up there.

Anywho, just leave your opinion in your post. I am interested in seeing how people believe the law should be interpreted. I figured this was an easy, nondivisive, real-life case to show how you really feel.

Should the defendant be subject to the increased penalty?

Interesting case. Everything turns on the simple and horribly broad verb "uses". This verb can be taken in the broad sense of using in any possible manner, or in the narrow sense of using in the manner for which the implement was designed. I would use the narrow sense, because it seems doubtful that legislators would have intended the broad sense. The significance of the firearm is that it increases the amount of risk to society -- but only if it is fired. Using a handgun as a paperweight to hold down the scrap of paper with the drug dealer's phone number on it has no significant impact on the crime and therefore is not relevant.

Note that the Oxford English Dictionary devotes 16 columns to this single word, so it's one of the broadest words in the language.

In this case I would have to side with the petitioner, Smith. The word "use" which is key in this case must have a reasonably defined meaning. To say that the Federal Statute allows for a broad interpretation of the word "use" would allow other laws to also be challenged by taking words out of context, thus establishing a dangerous precendent. In this case the word "use" implies using a firearm as a weapon not as a tradeable commodity. It is not the trafficking of weapons that the law aims to prevent, but the violence involved in the drug trade, inflicted by guns. In offering to sell his gun to a pawn dealer in exchange for narcotics, the petitioner was acting in no way different than a person exchanging any other commodity. In this case the gun is not a weapon.

Should the defendant be subject to the increased penalty?

No. Erasmussimo and TOTD are correct. The legislators clearly meant "use" in the usual sense of the firearm being employed as a weapon, not an object of trade. To broaden the statute by such an obvious deliberate misinterpretation would be impermissible judicial activism.

If one reads the statute in question a little further than addressed in the brief, it advises:

"any person who, during and in relation to any crime of
violence or drug trafficking crime (including a crime of violence
or drug trafficking crime that provides for an enhanced punishment
if committed by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court of the United
States, uses or carries a firearm...

(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years."

Here is the link to my resource for the above info: 18 USC 924

These minimum sentencing guidelines imply that mere possession of the gun during the course of the transaction qualifies as "use" of the weapon during the transaction. Since the legislators found it necessary to address, in the language of the law, brandishing and discharge of the weapon as additional and aggravating circumstances, one can only presume that mere possession of the weapon constitutes use. The possession of the weapon being classified as a crime is also expressly addressed in the statute, where it dictates that "carrying" of the weapon during the transaction constitutes a crime.

As applied to this particular case, the weapon was definitely being possessed at the time of the attempted transaction. I would also dare to say that the weapon, used as the barter agent that it was, undoubtedly furthered the trafficking offense, for without the use of said weapon as a trade tool, the trafficking offense would have been a no-go from the onset.

This is a good one.

First off, let's define a firearm.

A firearm is a mechanism designed to initiate the discharge of a bullet toward a target at a high rate of speed.

So if the bullet is not present, the object is not a firearm. Also, if nothing is targeted, the object is not a firearm. In other words, a pistol that is not pointed at anything, thus not targeting anything, is not a firearm.

An unloaded gun is simply a mechanism without any potential to do anything, other than club someone. Since the law does not call the object in question a club, the additional prison time does not apply.

A loaded gun that is not pointed at anything is also not a firearm, according to the above definition. We can modify the definition to include the term potential, as such:

A firearm is a mechanism with the potential to initiate the discharge of a bullet toward a target at a high rate of speed.

The problem with this definition is that a length of pipe becomes a firearm, due to the potential of making it discharge a bullet, as in a zip gun. It looks to me that without the bullet and powder, and a way of setting off the powder, a gun is simply a piece of machinery with no purpose. If the purpose is gone, so is the use of the machinery in the manner for which it was designed.

Using the gun as a trade token is another issue. It could just as well have been a stack of Federal Reserve notes, or anything of perceived value -- an antique, a jewel, a signed first edition Harry Potter book. The law does not address trade tokens used in drug transactions.

According to the definition provided in18 USC 921(a)(3), a firearm is defined as follows:

"(3) The term ''firearm'' means (A) any weapon (including a
starter gun) which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive; (B)
the frame or receiver of any such weapon; © any firearm muffler
or firearm silencer; or (D) any destructive device. Such term does
not include an antique firearm..."

(Who knows why the smiley and copyright sign found a home in my post...make them go away!!)

I would be inclined to say that an unloaded MAC-10, or for that matter, any length of pipe with qualities congruent to those of a zip gun, qualifies as a firearm under the legal definition of such, despite what Mr. Webster has to say about the topic. According to the legal definition provided, the gun in this case could be considered a firearm due to its capability of conversion, allowing it to expel a projectile (made possible by charging it with a full magazine, chambering a round, or providing by some means the explosion necessary to expel a round). From what I can see, the legal definition does not require that the weapon be loaded for it to be considered a firearm; only the ability to fire a projectile once it is loaded. Due to our newfound definition of firearm, the additional prison time does apply to the case at hand, since the firearm was presented to the agent accompanied by a silencer.

My question would be the meaning of the phrase readily be converted.... Does the possessor of an unloaded weapon need to have a fully charged magazine, that attaches to the possessed weapon, in an area within his personal control in order to readily convert said weapon, or does the weapon need to simply have the ability of being made a dangerous weapon, despite where the nearest compatible round of ammunition may be located? This language, from what I can see, presents a substantial amount of ambiguity.

One other notable factor in Smith is the fact that he had a virtual armory located within the vehicle that he was using as transportation. It could be argued that, despite the unloaded state of the MAC-10, the Defendant had several other weapons that could be construed as being used in the furtherance of the drug transaction, and ensuing transportation, of the controlled substance.