18 U.S.C. Sec. 924(c)(1), establishes a separate offense which enhances the punishment of a defendant who commits a violent crime or drug trafficking offense and "uses or carries" a firearm during or in relation to either offense. The statute's origin dates back to the Federal Gun Control Act of 1968 enacted in the wake of the assassinations of Robert Kennedy and Martin Luther King, Jr. The Gun Control Act was aimed to aid in the enforcement of state gun control laws and to prohibit sale of firearms to convicted felons and drug users. The enhanced punishment for using or carrying a gun in relation to a crime first appeared as an amendment ot the Gun Control Act.

The recent U.S. Supreme Court decision in Bailey v. United States changed the interpretation of the words "uses or carries" in the statute and significantly narrowed its application by providing a "bright-line test" that is pro-defendant. Thus Bailey has been viewed as a defeat for the U.S. Justice Department's war against drugs. Bailey not only has prospective effect on the enforcement of Sec. 924(c)(1) but it also has retroactive effect making hundreds of prisoners eligible for 28 U.S.C. Sec. 2555 relief for harsh consecutive sentences stemming from Sec. 924(c)(1) convictions based on the pre-Bailey interpretation of "use."

This Note analyzes the retroactive effect of Bailey, particularly in the U.S. Court of Appeals for the Second Circuit. The author discusses that the Second Circuit has been handling the post- Bailey deluge mainly by stretching the Sentencing Guidelines to uphold the pre-Bailey sentences. The author concludes that in light of the strained interpretation of Sec. 924(c)(1) and the ad hoc use of the Sentencing Guidelines by the Second Circuit, Sec. 924(c)(1) should either be amended to replace "use and carry" with "possession" where the firearm is in close proximity to the drugs or, in the alternative, abolished altogether and the matter referred to the sentencing commission.