The issue is coming up more often in sting operations – and has meant more jail time for convicts.
Federal law makes it a crime to "use" a gun during a drug offense. But what if an unloaded gun is merely payment for the drugs?
That's the question set for argument at the US Supreme Court next Tuesday in the case of a Louisiana man who traded 24 doses of the prescription drug OxyContin for a .50 caliber Desert Eagle pistol.
At issue in Watson v. US is how to define the word "use" in a statute that outlaws the "use" of a gun in a drug crime.
Although the case sounds unique, it is becoming increasingly common in sting operations for undercover agents to introduce or suggest a gun as a form of payment in a drug deal. Under the law as written by Congress, the gun adds an automatic five years in prison – and sometimes much more – to any drug charges.
"It is a very heavy stick," says Mark Stancil, a Washington, D.C., lawyer and adviser to the University of Virginia School of Law Supreme Court Litigation Clinic, which is assisting in the Watson case.
The 2004 transaction
In November 2004, Michael Watson of Ascension, La., told an acquaintance he wanted to buy a handgun for protection.
The man, who is in his 50s and is legally blind, said he needed the gun to safeguard his possessions and his home after a couple of break-ins. But because Mr. Watson was a convicted felon, he was barred from purchasing a firearm from a licensed gun shop.
Unknown to Watson, his acquaintance was working as an informant for law-enforcement officials. Instead of a cash transaction, the officials told the acquaintance to suggest a drugs-for-gun barter deal between Watson and an undercover federal agent posing as an illegal gun dealer. Watson agreed to the swap.
Shortly after Watson exchanged the pills for the gun, he was placed under arrest. Federal authorities charged him with drug dealing and possession of a gun by a felon. But prosecutors didn't stop there. They also charged Watson with "using" a gun during a drug-trafficking offense – a crime that carries a five-year minimum mandatory sentence.