A few more thoughts about Johnson and vagueness

As my previous post indicates, I’ve been closely watching this Term’s void for vagueness case, Johnson v. United States.  I’m interested in the case because I am working on a larger project about the void for vagueness doctrine.  As part of that larger project, I’ve been reading some older scholarship on the topic.  As those of you who follow this area of the law probably know, one important law review article on the vagueness doctrine is Anthony Amsterdam’s 1960 student note in the U Penn Law Review.  In that note, Amsterdam demonstrates that the Supreme Court’s vagueness doctrine is an inconsistent mess.  He provides a number of examples showing that the Court is inconsistent in its decisions whether a statute is so imprecise that it violates due process.

There is an observation in the Amsterdam article that has me wondering about how the Court will rule in Johnson. 

In particular, Amsterdam claims that a defense attorney is far more likely to succeed in a vagueness challenge if “his client’s conduct is not particularly evil as viewed by the prevailing moral temper of the Court.”  In support of this claim, Amsterdam notes that those defendants who have succeeded in their vagueness challenges have largely been either white collar regulatory offenders or offenders who have run afoul of prohibitions on speech.  Indeed, the white collar offenders tended to succeed in the pre-New Deal era, when the Court was more protective of economic liberty, and the speech defendants have been successful more recently as the Court has become more protective of speech.

Amsterdam’s historical observation has me wondering the extent to which the Justices’ views of gun control and the Second Amendment may affect their vagueness analysis in Johnson.  Samuel Johnson is not a particularly sympathetic criminal defendant.  New accounts report that he is a white supremacist who came to the attention of the FBI during a domestic terrorism investigation. (Johnson allegedly planned to attack the Mexican consulate in Minneapolis.)  But the legal issue before the Supreme Court is whether possessing a sawed-off shotgun constitutes a crime of violence.  To the extent that Amsterdam’s observation continues to hold true, the Justices’ appetite for striking down a clause of ACCA as unconstitutionally vague may turn on how protective they wish to be of Second Amendment rights.

Of course, as with all claims about what is really driving the Court, Amsterdam’s claim about the vagueness doctrine will seem correct only if it continues to be consistent with future cases.  And frankly, I haven’t yet looked at all of the vagueness cases that post-date his 1960 note to see whether they are consistent with the claim.  But I have seen the claim echoed in more recent scholarship on vagueness (look at page 1188 of this paper, for example).  So I suppose this gives us one more reason to follow the Johnson case.