The Hunter Gun Dilemma

Nobody forced special counsel nee United States Attorney David Weiss to indict Hunter Biden on gun charges that were both already conceded and, more importantly, the sort of charges that were essentially never charged absent a connection to some more serious crime. The only reason seems to be the ethereal pressure to do something, now that he was special counsel and the claim was that Hunter received special treatment.

Of course, those who desperately wanted Hunter Biden to be held to account were talking not about the gun charges, lying on form 4473 and possessing a gun while being a crackhead, but his business dealings, the millions paid to this crackhead who possessed no skill greater than being a vice president’s son. And that was because the vice president, who loved his son, was willing to let himself be used by his son to make millions, even if he never got any of that money himself.

After all, he was old, had more than enough of his own money to live happily ever after, and likely worried more about the welfare of his crackhead son after he was gone. It’s not a crime to not screw up your crackhead kid’s hugely profitable scam, but it’s no demonstration of integrity either.

Nonetheless, after all the shrieks and rending of clothes, the most Biden’s opponents got out of Weiss was this silly gun indictment. As David French points out, that’s going to be a problem for Biden’s adversaries.

In one sense, the Hunter Biden indictment just isn’t that remarkable, or interesting. Aside from the fact that it’s brought against the president’s son, it’s just plain vanilla gun charges, and the prosecution seems to have him dead to rights. He lied on Form 4473 — the federal form he was required to fill out when he purchased the weapon in question — by certifying that he was not illegally using drugs. He has since publicly stated that he was regularly using drugs, including crack cocaine, when he bought the gun. Thus, there’s overwhelming evidence he committed two related crimes, lying on the form and possessing the weapon itself. Federal law prohibits unlawful users of controlled substances from possessing firearms.

But these are not ordinary times, and in another sense, the Hunter Biden case is very interesting indeed. Ironically enough, it could ultimately end up undermining a key element of federal gun regulations. The case could be so threatening to federal gun control efforts that in less polarized times many Republicans would be supporting at least one element of Biden’s likely defense — that the prohibition against unlawful drug users owning guns is unconstitutional, at least as applied to him.

After the misbegotten Supreme Court decision in Bruen, chances are extremely good that the  gun charges against Hunter Biden are unconstitutional. Yay, unconstitutional gun charges. Boo, Hunter walks.

The federal court rulings after Bruen have been dramatic. In United States v. Rahimi, the Fifth Circuit reversed the federal conviction of a man who possessed a weapon while subject to a domestic violence restraining order. In April, a federal district judge struck down the gun possession charges of a marijuana user. In June, the Court of Appeals for the Third Circuit, sitting en banc, held that federal law violated the Second Amendment rights of a nonviolent criminal to purchase a firearm.

Kinda puts the screws to those who adore the new breadth of Second Amendment rights while wanting to see Hunter, and by extension, Old Man Biden, go down. Which one matters more? Which one are you willing to give away?

And now Hunter Biden, who bought a gun as a nonviolent, unlawful drug user, is charged under the same federal statute at issue in each of the cases above. Arguably, Biden’s best defense to that charge is to join a host of other criminal defendants by challenging that count under Bruen’s text-and-history test. He just might win — and if he does, he will contribute to the dismantling of a key element of federal gun regulations.

I would put the odds at much better than “he just might win.” After all, Hunter’s attorney, Abbe Lowell, is a damn fine lawyer and will no doubt make some strong motions. And a cynic might suspect that David Weiss, when indicting Hunter for these gun crimes, was well aware of both the law and the defense’s ability to challenge the indictments on constitutional grounds. In other words, the indictment was not merely doomed to fail, but intended to fail. That lets Weiss say he did it, he indicted Hunter for the gun, and it’s not his fault Thomas came up with an unworkable cockamamie test in Bruen.

Curiously, as David notes, the Heller decision, which interpreted the Second Amendment as a fundamental person right rather than a state militia authorization, included Scalia’s “errant paragraph” that is incomprehensible in light of the subsequent Bruen decision.

But the Heller decision did not establish a test. Instead, it spoke of the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” It noted that the amendment protected the kinds of weapons that are ordinarily used for a “traditionally lawful purpose.” And it took pains to say that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

There is no reconciling Bruen with this paragraph in Heller, not that anybody cared until it inured to the benefit of Hunter Biden. So will Hunter Biden be the new hero of the right, the face of the NRA, the bold victim of unconstitutional gun laws? In the comments to David’s column, some wag raised a curious reaction.

Democrats should immediately introduce legislation in the House for universal background checks and call it Hunter’s Law. I’d love to watch the GOP give floor speeches on that.

Be careful what you wish for. You just might get it.

16 thoughts on “The Hunter Gun Dilemma

  1. .02

    A bundle of sticks, indeed.

    Don’t plan on taking back your blogging shingle, just yet–someone with a shred of credibility, and knowledge of history (not to mention a predilection for just calling balls and strikes) needs to man the fort. These are gonna be some interesting times.

    Who knows… by the time all this is through, the Fourth and Sixth Amendments may have a new bundle of sticks to chat about.

  2. abwman

    You fairly point out that Hunter may have a defense to a ban on gun possession, but it seems improbable that this would extend to falsifying the gun application. But more importantly, the statement that “It’s not a crime to not screw up your crackhead kid’s hugely profitable scam” could understate his father’s exposure, depending on the underlying facts, which we don’t yet know. There certainly are plausible circumstances where assisting the hypothesized scam would be criminal under several federal statutes, including aiding and abetting mail/wire fraud and money laundering crimes, depending largely on questions of knowledge and substantial assistance. The facts will matter, and they are not clear at the moment, probably to Weiss as well as observers like us.

    1. SHG Post author

      After 5 years of investigation, there is no evidence that Joe committed a crime. So your takeaway is we need to investigate more because it’s not clear at the moment? You’re a sharp one, you.

  3. szr

    One man escapes the horrors of criminal punishment and his case results in the courts further entrenching and expanding a constitutional right?

    If the general political discourse were less insane, the obvious answer would be to embrace Hunter’s case as a gift from the legal gods. He provides a figure who is sympathetic to the people most likely to oppose a SCOTUS holding that this gun restriction is unconstitutional.

  4. Hal

    The problem is twofold.

    First, there’s a longstanding reluctance to acknowledge that the right to defend oneself is a fundamental right and inherently a right to the means we which to effectively do so.

    Second, Bruen is an egregiously reasoned, nonsensical, and indefensible decision.

    In both the Miller and Heller decisions the courts epically “screwed the pooch”. They should have ruled that the right to defend oneself is a fundamental right and that any measure that infringes upon that right, or limits/ denies access to the means to do so must pass strict scrutiny.

    Had they done so, Bruen might never have come before the court and if it had SCOTUS could simply have ruled that while public safety is a compelling government need, but the NYC law infringes on a fundamental right/ can’t pass strict scrutiny.

    JMO, IANAL and didn’t stay in a Holiday Inn last night. OTOH, I have done my homework.

  5. phv3773

    “any measure that infringes upon that right”

    I don’t think it takes an imaginative person to come up with something that makes that sound silly. Claymore mines with trip wires, maybe. Flame throwers, maybe.

  6. Anonymous Coward

    Most of the gun rights types I hang with see it as win win. The relevant law (922 g IIRC) is already being challenged by a less prominent defendant and in the meantime we can point at Hunter lying on a 4473 and yell “enforce the laws already on the books instead of making more gun control”

    1. Jake

      Hypothetical: Hunter Biden and Donald J. Trump will receive an identical punishment for each instance of lying on an official document. What’s the punishment?

        1. Miles

          Have to disagree, Admiral. I admire Jake’s tenacity. Most people would feel some sense of shame for trying to twist everything to somehow relate to their tribal orthodoxies, but not Jake. Jake doesn’t care how foolish he looks. He’s a team player to the end.

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