Penalty Provisions of Federal Gun Law Struck Down


In the opening line of a June 24, 2019 ruling in United States v. Davis, conservative U.S. Supreme Court Justice Neil Gorsuch, joined by the court’s four liberal justices, stated: “In our constitutional order, a vague law is no law at all.”


That said, Justice Gorsuch went on to find that Subsection (c) of 18 U. S. C. § 924—a provision of the federal gun law that exposes a criminal defendant to additional penalties when they use a firearm during the commission of a felony—was unconstitutionally vague because it did not specifically define what kind of predicate felonies triggered additional use of the firearm penalties.


Unconstitutionally Vague


Justice Gorsuch pointed out that the only guidance offered by Subsection (c) are the subparts (3)(B) which states that predicate felonies were those “that by [their] nature, involve[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”


In June 2014, Maurice Davis and Andre Glover robbed several Murphy Oil gas/convenience stores in the Dallas-Fort Worth metroplex. Former Northern District of Texas U.S. Attorney John Parker charged the duo with a series of violent federal crimes including multiple counts of robbery affecting interstate commerce in violation of the Hobbs Act and one count of conspiracy to commit a Hobbs Act robbery. Davis was charged with an additional count of being a felon in possession of a firearm.


20 Year Max Increased to 50 Years in Prison


In November 2015, a jury convicted Glover on four robbery counts and Davis on two robbery counts, and both men on the conspiracy count. The jury also convicted Davis of being a felon in possession of a firearm. The jury acquitted Davis on one count of a Hobbs Act violation. Each man faced a maximum penalty of 20 years in federal prison and a $250,000 fine for the conspiracy and each robbery conviction. Davis faced an additional ten years and a $250,000 fine for being a felon in possession of a firearm.


In March 2016, U.S. District Court Judge Reed C. O’Connor sentenced Glover to 50 years and Davis to 41 years in federal prison. These stiff sentences were imposed under the provisions of Subsection (c) of 18 U. S. C. § 924, which increased the penalty above the statutory maximum punishment.  In the wake of the Supreme Court ruling, the two men will be resentenced and are likely to receive significantly reduced sentences.


Kavanaugh Seeks to Legislate from Bench


In dissent, Justice Brett Kavanaugh wrote that, “The court’s decision today will make it harder to prosecute violent gun crimes in the future.” The Justice opined that Subsection (c) of 18 U. S. C. § 924 has been a contributing factor in the reduction of violent crime in the United States.


Congress enacted Subsection (c) of 18 U. S. C. § 924 as part of the Gun Control Act of 1968. The purpose of the Act, as found in the Congressional Record, was that “most people can see that law enforcement and law and order have broken down…. Something must be done to return to law enforcement, where the criminal can be sure of being arrested, tried, convicted and punished, for that is the real deterrent to crime.”


The Act failed miserably in that objective.


Tough on Crime Statute has Troubled History


In 1984, the Reagan administration as part of the Comprehensive Crime Control Act of 1984 was forced to amend Subsection (c) of 18 U. S. C. § 924 to read:


“Whoever, during and in relation to any crime of violence, including a crime of violence which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device, for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence, be sentenced to imprisonment for five years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for ten years. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein.”


Writing in the Journal of Criminal Law and Criminology, George P. Apostolides in 1994 described how the Reagan administration again was forced to amend Subsection (c) of 18 U. S. C. § 924 two years later as part of the Anti-Drug Abuse Act of 1988:


“ … First, it replaced the ten-year sentence for a ‘second or subsequent conviction’ with a twenty-year sentence, and the twenty-year sentence for a ‘second or subsequent conviction’ with a machinegun, destructive device, or silencer with life imprisonment without release. Second, Congress replaced the ten-year sentence for using a machinegun, destructive device, or silencer with a thirty-year sentence. Congress last amended this law in 1990, when it inserted ‘or a destructive device’ after ‘a machinegun’ in the first and second sentence of the subsection and inserted ‘and if the firearm is a short-barreled rifle, short-barreled shotgun to imprisonment for ten years’ in the first sentence of the subsection.”


War on Crime Causes Explosion of Prison Population


The Gun Control Act of 1968 contributed to an explosion of the inmate population in the American prison system but it did not make the country safer. In fact, the Nixon “war on crime” unleashed horrific conditions in the nation’s prison system that produced bloody prison riots like Attica ((New York 1971), McAlester (Oklahoma 1973), and New Mexico (1980). These riots, and others like them, forced states to release thousands of angry men, scarred by violent prison conditions, without rehabilitation or job skills, determined get even with society.


Violent gun crime increased.


Prison Population Increased 400% Between 1970, 1994


Congress responded to the 1970s “crime wave” trigged by these angry men with the Crime Control Act of 1984. This Act failed as miserably as the Gun Control Act of 1968. The 1984 Act succeeded only by increasing the nation’s prison population by 32 percent during its first two years in operation. In fact, according to the Brennan Center for Justice, the nation’s prison population increased 400 percent between 1970 and 1994 with no marginal impact on crime or gun violence.


What did Congress do?


Prison Population Doubles Again Between 1994, 2009


It enacted the Violent Crime Control and Law Enforcement Act of 1994. The Brennan Center said this Act added 200,000 police to American streets by 1999 which led to a doubling of the prison population between 1994 and 2009.


Prison Industry Incarcerates 2.2 Million


Today America owns a “prison industry” that currently has more than 2.2 million people incarcerated.


And what has been the impact of the stiff penalties for gun violence as this industry was built?


Gun Violence Increases While “Tough on Crime”


The Brady Plan reports that every year 113,108 people are killed or injured by gun violence:


  • 36,383 people die from gun violence
  • 12,830 are murdered
  • 76,725 people survive gun injuries
  • 34,566 are injured in an attack
  • 22,274 die from suicide
  • 3,554 survive a suicide attempt
  • 496 are killed by legal intervention
  • 1,376 are shot by legal intervention
  • 295 die but the intent was unknown
  • 4,471 are shot but the intent is unknown
  • 509 women are killed by their husband or male dating partner


Legislation creating enhanced penalties for use of a firearm during the commission of a felony is nothing short of political grandstanding. The penalties for the predicate offenses are more than sufficient to punish the offender and provide deterrence/protection to society. Subsection (c) of 18 U. S. C. § 924 got exactly what is deserved: a declaration of unconstitutionality, and hopefully it will stay that way.