Dejá-Vu in Begay v. United States

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3 Responses

  1. A.W. says:

    It occurred to me, though, what a lousy factual scenario this case was, to bring the issue up. you can reduce it to this… do you want a guy with a history of drunk driving to be allowed to have a gun?

    Its fairly remarkable that it came out the way it did. really, ideally, the case you want to bring is something like a S 1326 illegal reentry. That is, when you are thrown out of the country, and are caught back in the U.S. again. The exact same issue–aggravated felony–is relevant to that inquiry, but then you don’t have that fear of a drunk with a gun–just a drunk illegal immigrant.

    Of course defense attorneys can’t pick and choose which cases to bring…

  2. A.W. says:

    Having read the opinion over lunch, i have to say it is startling how lousy the decision is.

    Now, let me start by saying something nice. The definition of violent crime had been stretched beyond any recognizable parameters. For instance, i remember reading one case where the 5th Circuit found that auto theft was a violent offense on the theory that if it isn’t your car you will drive it more recklessly. Look, I’m pretty tough on crime, but there are limits and that doesn’t even pass the laugh test. So it is gratifying to see the court go the other way, a bit. But Breyer’s reasoning is terrible.

    For instance, he argues that the enumerated crimes involve “purposeful, violent, and aggressive conduct” and therefore the unenumerated crimes should too. Except that’s really not true in the case of burglary. Burglary doesn’t have to be violent or agressive. technically it can be nothing more than pushing open a door. Now that is a purposeful act, but so is drinking a few beers and getting into a car. It is not the crime that is violent, but rather the fact that it is highly likely to create a violent encounter, even if it is only being shot by the homeowner. Breyer’s opinion never demonstrates an understanding of that.

    Likewise, Breyer pretends that this definition only applies to gun possession (see page 8 of his opinion). As i suggested in the last post, that just isn’t true. It is also used in Sect. 1326 for illegal reentrants, and my impression is that it is used for a host of other criminal issues. Further, it is the same concept used in the sentencing guidelines as an enhancing factor in a multitude of crimes. So as indicated above, we are equally talking about illegal immigrants, and many others.

    So what are they going to do when it becomes clear they made a mistake? What are they going to do next time when the aggravated felon at issue is an illegal alien and not a guy with a gun? Are they going to say it means different things in those different contexts, even though it is the same words? or are they going to take the extraordinary step of overturning a decision on statutory construction.

    Really, a terrible, terrible opinion. The outcome is not too noxious to me, but the logic is terrible. I’ll let you know if the concurrances or the dissent pick up on how flawed the main opinion is.

  3. A.W. says:

    Hmm, interestingly no one else picked up on these fatal points.

    I think on balance, Scalia’s opinion was the best, except that it wouldn’t settle anything because essentially his argument is the factual record has not been sufficiently developed. That leaves a door explicitly open to make the cast that drunk driving is a sufficiently dangerous act as to justify calling it a crime of violence.