Argument recap: Watson v. US
Oral arguments took place on October 9, 2007. Arguing on behalf of Mr. Watson, Karl J. Koch contended that receiving a gun in exchange for drugs did not constitute "use" under the word's ordinary meaning or the Court's precedent in Bailey, which requires active employment. He conceded that receipt does constitute possession. Though possession is not use, possession in furtherance of an offense is indictable under the statute. Koch argued that Watson did not possess the gun in furtherance of the drug deal because its receipt was incidental and occurred after the transaction was complete. Chief Justice Roberts pressed Koch on whether the gun was still employed as consideration in the sale and therefore "used." Koch returned to the ordinary meaning of the word. He analogized to a person buying coffee and argued that the coffee shop receives"”but does not use"”the dollar from the customer, and that the customer receives the coffee, but does not use it.
Justice Alito asked if there was any good reason why Congress would prescribe a five-year penalty for the person who hands over a gun in exchange for drugs, but not for the person who does the reverse. Koch asserted that there was a distinction because the person bringing the gun into the transaction "presents a different type of risk. He's got the gun. He's in control of it." But Justice Ginsburg asked if this was a distinction without a difference, because either party could use the gun, thereby converting it "from currency to a cannon." Koch granted that involving a gun on either side is risky, but maintained that the person bringing the gun to the transaction decides whether it is loaded or cocked and generally exercises more control over it.
Koch continued by distinguishing the situation in Smith from that in Watson. 924(d), at stake in Smith, refers to a firearm intended to be used, while the focus of 924(c) is the individual. "I think under Smith the human that's using the firearm in the transaction is actually the person that came with the firearm to use it to purchase drugs." Koch clarified, in response to Justice Scalia's questioning, that Smith was about weapon versus non-weapon use, whereas this case is about active employment versus passive receipt or use versus nonuse. He did concede that the other party to the transaction "used" the gun, but in a non-weapon sense. Although Justice Breyer said he could understand Watson's arguments more easily if he were arguing to overturn Smith, Koch stated that he was not seeking that result and that the two parties to the transaction should be treated differently. He relied heavily on Bailey's "active employment" standard.
Assistant Solicitor General Deanne E. Maynard argued on behalf of the Respondent that Watson's acceptance of the gun in exchange for drugs fell within Smith's principle that a gun is "used" when it becomes an item of trade. Justices Souter, Stevens, and Scalia questioned Maynard about the ordinary meaning of the term "use." She acknowledged that receipt is not the most obvious meaning of the word, but said, "I think one can employ use in a natural way to mean receipt in the way that Petitioner used the firearm here the drug dealer used the gun as the medium of exchange to complete his drug sale."
Justice Stevens asked Maynard why the statute should treat both parties to the transaction the same. He emphasized that one could say "I used the gun to pay for the drugs" but that there was no countervailing sentence.
Maynard distinguished Bailey on factual grounds"”the guns in that case were locked up and not readily accessible. Smith is the better analogy, she argued: "there's no reason to believe that Congress would have wanted the defendant in Smith to stand convicted of this crime but to leave the drug dealer who ends up with the gun not with the punishment for this crime."
In his rebuttal, Koch allowed that Smith could be overruled if the Court desired a consistent outcome on both sides of the transaction.