Justice Scalia’s hypothetical gun‑toss scenario discussed during oral argument

4.2.12 WC: 191694 familiar with, since it is the weapon of choice for law professors, of which Scalia had been one before ascending the bench. Scalia asked me what my position would be if one bank robber had a gun and the other one doesn’t and the one with the gun “throw[s] the gun to the trigger man, as the policeman’s approaching him, he says, ‘I need a gun,’ and I throw the gun to him...I don’t care whether he kills the policeman or not.” I had prepared for every likely question I might be asked by the justices, but the idea of a gun being throw by one robber to another had never occurred to me. I had to think quickly. In the classroom, a poor answer to a professor’s bizarre “hypo” might reduce a grade, but in the courtroom it could be a matter of life or death. I quickly recalled the facts of the Enmund case and reminded the justices that Enmund too had provided a gun to his co-conspirators who then killed the couple, and that there was no difference between “throwing” a gun, as in Scalia’s hypothetical, and “providing” the gun, as in the real facts of Enmund: “There is no difference between this case and Enmund, except that this case is far more compelling.” Scalia repeated his hypothetical: “Please, please. I don't understand your response to the second hypothetical I put to you. Never mind the trigger man. The person who tosses the gun to the trigger man. There is no way in which he has an intent to kill within the Constitutional rule; is that right?...he doesn’t care whether the policeman lives or dies. Scalia persisted: But the triggerman asks for a gun. “Toss me a gun.” He tosses him the gun. He says: “There is a policeman coming.” “Throw me a gun quick.” That wouldn’t be enough? 172 HOUSE_OVERSIGHT_017259