“A Rogue’s Gallery of Offenses,” Part II: Davis and Law Enforcement

Last week, I wrote about the Supreme Court’s decision in Rehaif v. United States and how that decision, along with United States v. Davis, produced interesting lineups and may lead to big changes in the enforcement and prosecution of gun crimes. Today, I want to focus on Davis—and what it means for the future.

Justice Gorsuch starts off the opinion for the Court with a majestic paean to core democratic values (and perhaps a nod to natural law theory): “In our constitutional order, a vague law is no law at all.” The law at issue is 18 U.S.C. § 924(c), which threatens long prison terms to anyone who uses a firearm in a “crime of violence.” The statute defines a “crime of violence” as one satisfying either of two criteria:  either (1) the use or threat of violence is an element of the offense (e.g., murder) or (2) the offense, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The first prong is called the “elements clause” and the second the “residual clause.” Because many offenses are committed with firearms, § 924(c) has been a powerful tool for prosecutors to “tack on” additional charges that carry steep penalties.

Justice Gorsuch, writing for the Court, and joined by the four justices typically classified as liberal, struck down the residual clause as unconstitutionally vague. This conclusion followed, for the majority, from the Court’s recent decisions in Johnson v. United States and Sessions v. Dimaya, both of which declared similar language unconstitutionally vague. The same categorical inquiry under § 924(c) gave ordinary citizens no way to know if their conduct would be criminal; the similar residual clause was therefore also unconstitutional.

Echoing Justice Alito’s dissent in Rehaif, Justice Kavanaugh’s begins: “Crime and firearms form a dangerous mix.” He catalogued many other laws that require a jury to find that conduct created a substantial risk, grave risk, or unreasonable risk of some type of harm. None of those, he said, have been thought to raise constitutional issues. On top of those laws, Justice Kavanaugh described several violent crimes for which the defendants were convicted of violating § 924(c) on the basis of the residual clause. Justice Gorsuch simply dismissed these data points: “the dissent’s legal analysis only comes sandwiched between a lengthy paean to laws that impose severe punishments for gun crimes and a rogue’s gallery of offenses that may now be punished somewhat less severely.”

But Justice Kavanaugh has a rejoinder to the claim that these factors dictate his reading of the text.  “To be sure, the consequences cannot change our understanding of the law. But when the consequences are this bad, it is useful to double-check the work.” One could imagine proponents of stricter firearms regulation quoting this language back to Justice Kavanaugh in the future, and perhaps wondering if that type of double-checking occurred before his dissent in Heller II concluding that the Second Amendment forbid the District’s ban on many semi-automatic rifles and its requirement that gun owners register their firearms.

Leah Litman has an excellent post discussing how Davis will play out in the post-conviction context and what it means for offenders whose convictions have already become final. As we await the details of how Davis will be construed and applied in those contexts, we can be sure that both Davis and Rehaif will have real-world consequences for the prosecution of gun crimes. And they provide significant insights into how President Trump’s Supreme Court appointees view the judicial task. Though Justices Gorsuch and Kavanaugh are both conservatives, they are not, as Jonathan Adler has written, clones.