Lawyers, guns and vagueness: how will SCOTUS look to get out of this Johnson mess?

With apologies to the late great Warren Zevon, I cannot help but riff on the all-time greatest song with lawyers as the first word of its title as I think about the Supreme Court's scheduled oral argument this morning in United States v. Davis.  Over at SCOTUSblog, Leah Litman has this extended preview of the argument under the title "Who’s afraid of the categorical approach?," and it provides some context for my pop-culture reference: 

Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness....  [T]he now-defunct residual clause defined a violent felony as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”... 

And last term, Sessions v. Dimaya invalidated a provision worded similarly to ACCA’s residual clause — Section 16(b), the federal criminal code’s general definition of “crime of violence.” Section 16(b) defined a crime of violence as “any other offense that is a felony and that, 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.”  That brings us to Davis.  Davis involves a provision, Section 924(c)(3)(B), that is identical to Section 16(b).  Section 924(c) creates a graduating set of penalties for using a firearm “during and in relation to any crime of violence.”

But why would the two statutes, Section 16(b) and Section 924(c), be interpreted differently if they are worded the same way?  In arguing that Section 924(c) is not void for vagueness even though Section 16(b) was, the government makes a few points.  None of them completely distinguish the two provisions.  For example, the government invokes the canon of constitutional avoidance, which says that courts should interpret statutes in ways that avoid the statute being unconstitutional.  That argument also applied to Section 16(b) in Dimaya.  The government also maintains that the best interpretation of Section 924(c) is that it calls for a circumstance-specific determination about whether a defendant’s actual offense conduct satisfies the substantial-risk test because Section 924(c) “applies only to the conduct for which the defendant is currently being prosecuted.” That claim would ostensibly apply to Section 16(b) as well, or at least some applications of it.  Because Section 16(b) is the general definition of crime of violence, it is incorporated into many different criminal statutes, some of which use the term to refer to the conduct for which the defendant is currently being prosecuted.

But distinguishing Sections 16(b) and 924(c) may not be necessary if the court thinks that upholding Section 924(c) is more important than sensibly distinguishing 924(c) from 16(b)....  There is also the more important question of how courts would interpret Section 924(c) if they didn’t use the categorical approach.  In Dimaya, Thomas and Alito said they wanted to adopt a circumstance-specific approach that assessed the defendant’s actual offense conduct (i.e., the specific facts about what the defendant did). Perhaps unsurprisingly, the government urges the court to adopt that approach to interpreting Section 924(c). The respondent, Maurice Davis, counters that the government’s interpretation of Section 924(c) would be both unpredictable and sweeping, and would leave matters to the whim of juries, generating conflicting results.  Davis also argues that the government’s proposed interpretation of Section 924(c) is inconsistent with the statute’s text, which directs courts to determine whether “an offense” “by its nature” involves a substantial risk, not whether the facts underlying the offense involve a substantial risk.

Another preview of this case and today's argument is available here from Jordan Rubin at Bloomberg Law under the headline "Guns, Violence, Gorsuch in Spotlight in Supreme Court Dispute."

Because Justice Gorsuch was the key swing vote in Dimaya, these previews sensibly highlight his importance in the resolution in Davis. But I will also be interested to see if Justice Kavanaugh has anything notable to say during oral argument today. Because his predecessor, Justice Anthony Kennedy, was not a big fan of Johnson jurisprudence, and because his pal Chief Justice Roberts also seems to favor the government in these cases, I am inclined to guess Justice Kavanaugh will be resistant to extending Johnson. But you never know how his extended history as a circuit judge might shape his views on these kinds of cases.