Argument analysis: Justices unhappily consider whether sawed-off shotguns are inherently violent

It is possible, during yesterdays second argument (in Johnson v. United States), that the Justices were simply tired from the first argument, in Yates v. United States, which also addressed Congresss failure to clearly anticipate or specify certain cases when legislating about federal criminal law. The Justices seemed somewhat less active than usual, and the transcript is a rare one in which Justice Anthony Kennedy, often the swing Justice, did not ask a single question. Moreover, Justice Antonin Scalia asked only two short ones near the start of the argument. As a consequence, both arguing lawyers (Assistant Federal Public Defender Katherine Menendez for Johnson and Assistant to the Solicitor General John Bash for the government) were at times allowed to speak multiple full paragraphs without interruption.

These unusual silences make it difficult to predict whether a majority will find that simple possession of a short-barreled shotgun qualifies as a violent felony under the federal Armed Career Criminal Act (ACCA), which as previewed here is the narrow question presented in this case. But Chief Justice John Roberts, who might well be the fifth vote in this case, may have tipped his hand when he said toward the end of the hour that when its mere possession, the risk isnt there. Given that the residual clause of the ACCA requires that a qualifying prior conviction involve conduct that presents a serious potential risk of physical injury, a conclusion that the risk isnt there for possession of a shotgun would seem to answer the question.

The narrow question presented: Are short-barreled shotguns inherently violent?

As previewed here, this case requires the Court, for the fifth time in seven years, to decide whether a specific state felony prior conviction counts as a violent felony. Under Section 924(e) of the ACCA, three such prior violent felonies trigger a mandatory fifteen-year minimum term of imprisonment. In defining violent felony, Congress first listed specific felonies that qualify (burglary, arson, extortion, or the use of explosives) as well as any felony that has as an element the use, attempted use, or threatened use of physical force against another. But to capture other potentially violent crimes, Congress added a residual clause, providing that any other felony that involves conduct that presents a serious potential risk of injury also qualifies.

In its four prior residual clause cases, the Justices have ruled that this opaque language requires the Court to determine whether the ordinary case of the type of prior conviction at hand presents the potential risk of injury that that the statute requires. Yet in all four cases, the Justices have divided over how to analyze that question. Yesterday, Justice Sonia Sotomayor recognized that the prior decisions still provide no uniform standard, saying to Bash, in some frustration after a series of questions, I just want you to give me some sort of analytical approach.

The governments response was to say that possession of weapons that by their nature are associated with violent crimes should count. By contrast, Johnson asserted that almost no crime of mere possession can, by itself, present a serious risk of physical violence. Johnson also argued textually, contending that by specifying as a qualifying conviction the use of explosives, Congress itself appears to have excluded mere possession offenses.

Justices Samuel Alito and Scalia appeared to share the governments view. But Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan appeared to take Johnsons side. Justice Stephen Breyer was also unhappy with the governments lack of data. To this reader, however, no Justice appeared to get answers solid enough to be certain of the right result.

The broader question: Is the statutory language too vague to survive?

Thus, toward the end of the hour, after many questions had yielded few solid answers from either side, Justice Alito gave voice to a broader question. The residual clause, Justice Alito noted, has caused no end of problems for this Court; cant the Justice Department propose some legislation to improve the situation? This echoed Justice Scalias dissenting view in the Courts last residual clause case (Sykes v. United States, decided in 2011): that the residual clause is so unclear — and so unhospitable to the Courts clarifying efforts that it should be declared unconstitutionally vague. If Congress wants to capture some risky, but not violent in themselves, offenses for recidivist sentencing, let it go back to the drawing board and try again.

But the Court did not adopt Justice Scalias view in Sykes, and no other Justice brought it up expressly yesterday. Perhaps this indicates that the larger question is settled, and that the Court will simply continue to answer residual clause questions conviction by conviction. Justice Scalias unconstitutionally vague view is presumably well known to his colleagues; thus there was no need for him to express it again at yesterdays argument. His silence spoke volumes, so to speak. And Johnson has not offered the argument here; Menendez noted in rebuttal that this Court need not get into whether it is unconstitutionally vague, and urged only that the Court ought to apply the rule of lenity to rule for Johnson.

Will the lack of precise empirical data lead to another divided ACCA decision?

Justice Scalias one question (he was apparently unable to help himself) was whether there is any other [other than unlawful] use for a short-barreled shotgun? Justice Alitos questions also appeared to embody that view. Indeed, the majority opinion in Heller v. District of Columbia, the Courts 2008 Second Amendment right to bear arms decision, noted that short-barreled shotguns are not typically possessed by law-abiding citizens for lawful purposes.

However, an amicus brief had noted that tens of thousands of Americans have lawfully registered short-barreled shotguns, which are legal to own in a majority of states. Chief Justice Roberts repeatedly raised this point, and the government disputed only the exact number, not the fact. (There was a humorous moment in which Bash said a few thousand; when the Chief Justice suggested that he might have used a different word, Bash responded, amid laughter, forgive me, a few dozen thousand.) Thus there well may not be a majority for the view that short-barreled shotguns are inherently associated with violence, although Bash did stress that the question is whether a conviction for unlawful possession qualifies, so that the number of lawful shotgun owners is not relevant.

Justice Breyer, an author of the Courts early ACCA decisions (as well as an early First Circuit decision expressing the view that weapons possession by itself is not violent), has repeatedly asked the government for better, or more precise, data on the association of particular offenses with risks of injury. He suggested again yesterday that perhaps the Court should employ a presumption against including various felonies in the residual clause, unless persuasive reliable data is presented. Bash noted that Justice Breyers view had not previously been adopted by a majority but the argument began, and ended, with various Justices voicing the same frustration: how should the Court determine what offenses present a serious risk of physical injury without empirical evidence (let alone without more clear statutory guidance)?

In fact, Justice Scalia invoked the Courts questionable reliance on questionable statistics to bolster his void-for-vagueness argument in Sykes. Even an amicus brief filed by law professors advocating a new statistical source concedes that the data provided is not ideal. The absence of reliable statistics, combined with the existence of lawful short-barreled shotgun owners, may lead a majority to rule that a conviction for mere possession of such a shotgun is not a violent felony for the ACCAs harsh mandatory minimum sanction.

Or perhaps Justice Scalia will once again swing the Justices his way, once he has their attention in the privacy of their Conference room. In which case, Johnson also wins. So, all around, yesterday was a tough day for the federal government although the fault, if any, lies with Congress rather than the Solicitor Generals office and its talented lawyers who, as Justice Thurgood Marshall liked to say, did the best they could with what they had — the limited statutory tools that Congress has provided.