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« Argument Monday in post-McDonald case | Main | File under only police are competent to have handguns »

18 USC 924 mandatory sentence in the Supreme Court

Posted by David Hardy · 3 October 2010 11:40 AM

Abbott v US, to be argued Monday. Preview here.

18 USC 924(c) provides a mandatory, consecutive five year sentence for use of a gun in a drug offense, "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law..." Defendant was subject to (and got) a ten year mandatory minimum for the drug offense, and the trial court also stacked on the 924(c) mandatory sentence. The question is whether the "except" clause covers any mandatory minimum sentence applicable to the defendant's convictions, or whether it only covers a mandatory minimum for firearm possession during crime. If the first, then the trial court erred by adding the five year sentence onto the ten year one; if the latter, since the ten year sentence was for drug selling, not for possessing a gun, the trial court acted properly

I suspect there is no useful legislative history, since Congress enacts things like this was little thought beyond the fact it will look good in the press. A pragmatic construction -- try to construe it so as to make the system Congress created work the way it would have wanted -- hits the same problem, that it's hard to tell what Congress wanted to do.

· Gun Control Act of 68

9 Comments | Leave a comment

Oakenheart | October 3, 2010 3:57 PM | Reply

"A pragmatic construction -- try to construe it so as to make the system Congress created work the way it would have wanted -- hits the same problem, that it's hard to tell what Congress wanted to do."

Congress doesn't give a shit what any law actually does beyond look like they did "SOMETHING!!!!"

Jim | October 3, 2010 5:43 PM | Reply

It seems very few people ever read anything that gets voted on, and those few who do don't really put much thought into it.

Here in RI, we have piles and piles of contradictory or confusing or unclear statutes. Bills are even worse. One time, someone introduced a bill that would allow anyone with a hunting license to carry a concealed handgun anywhere. Too bad it didn't pass...

Ken | October 4, 2010 8:48 AM | Reply

Heaven forbid that we would ever do anything as mundane as interpret the statute as if it were a intentionally and carefully constructed sentence in standard English. (I know, but that's what we call a legal fiction.) "... by this subsection or by any other provision of law ...". Looked at from that point of view, there doesn't seem to be much of a question.

Hank Archer | October 4, 2010 2:35 PM | Reply

I found this on Pournelle's site: Surprised I hadn't heard about it sooner.

http://www.foxnews.com/us/2010/09/09/texas-gun-dealer-gets-prison-sentence-selling-gun-illegal-immigrant-id-illegal/

fwb | October 4, 2010 3:53 PM | Reply

Please explain how the Congress has the power to punish for this activity. Before doing so, note that the power to coin money does not convey the power to punish counterfeiting that money. These two powers are explicitly delegated independently in Article I. Section 8. There are three explicit delegations of police (punishment) powers in the Constitution. In each instance these explicit delegation provide absolute evidence that Congress has no blanket/inherent/implied power to punish violations of federal laws. In order for Congress to legitimately punish violations of commerce, taxation, or whatever, an explicit grant must appear in the Constitution.

The Framers left police power in the hands of the States. Laws that met the necessary and proper restriction and which were part of the powers constitutionally delegated could be made. Following the passage of a constitutionally valid law, the States, acting under the supremacy clause, would enact police (punishment) laws to enforce those federal laws. If the States felt the law was not consistent with the Constitution, the States could negate the federal law. THIS is the true separation of power in our system of government.

Read the Constitution. There are no hidden powers. There are no implied powers. There are no inherent powers. Everyone who has ever taught these ideas is flat out wrong.

Anonymous | October 5, 2010 1:19 AM | Reply

Congress has the power to do most of the things they do simply because nobody stops them. That's the way power works. As to their Constitutional authority to do what they do, with the Court's approval they pretty much make it up as they go along. See Wickard v. Filburn, 317 U.S. 111 (1942) if there's any doubt.

SPQR | October 5, 2010 10:25 PM | Reply

FWB, as I've mentioned before, you are arguing against something that has a two century old precedent.

fwb | October 7, 2010 1:18 PM | Reply

SPQR

Slavery was perfectly acceptable for thousands of years so the precedent was set. The precedent saiud we approve of slavery. It was wrong as are the so-called precedents with which you are so enamored.

You may sit on your ass and do nothing. What I argue for is legitimate government function according to a contract among We the People.

The Constitution is LAW. It is the People's LAW FOR the government. Any action not explicitly allowed is a violation of that law. That violation negates the contract. Of course that is where those in power have taken us.

It is sad when one's view of the world is limited by the box in which one lives.

Anonymous: And so because Congress violates the contract and the Courts violate the contract, we should be willing to sit back and still do nothing. There IS no hope so long as teh vast majority of folks are sheeple.

fwb | October 7, 2010 1:28 PM | Reply

SPQR

Slavery was perfectly acceptable for thousands of years so the precedent was set. The precedent said we approve of slavery. It was wrong as are the so-called precedents with which you are so enamored.

You may sit on your ass and do nothing. What I argue for is legitimate government function according to a contract among We the People.

The Constitution is LAW. It is the People's LAW FOR the government. Any action not explicitly allowed is a violation of that law. That violation negates the contract. Of course that is where those in power have taken us.

Because the government is the creature of, created by the Constitution, no part of that created has any legitmate or constitutional authority to determine the extent of that authority. The Constitution spells it out. IMO, the judges who say different either lie(d) or were/are simply ignorant.

It is sad when one's view of the world is limited by the box in which one lives.

Anonymous: And so because Congress violates the contract and the Courts violate the contract, we should be willing to sit back and still do nothing. There IS no hope so long as teh vast majority of folks are sheeple.

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