Making sense of the Armed Career Criminal Act’s “residual clause” has become an almost annual rite for the Supreme Court. Sykes v. United States, decided last week, is the court’s fourth attempt in five years. The continuing confusion is obvious in the sharp, separate dissents from Antonin Scalia and Elena Kagan.
The law ratchets up the sentence for felons who illegally possess firearms — from a maximum of 10 years to a minimum of 15 — if they have three previous convictions for a violent felony. It defines violent felonies as burglary, arson, extortion or acts involving the use of explosives, and adds “conduct that presents a serious potential risk of physical injury to another.” Therein lies the confusion.