WASHINGTON — The criminal indictment against Hunter Biden for illegal gun possession could run afoul of the new and broader Second Amendment interpretation that has been gaining traction in conservative courts.
The president’s son is not accused of using a gun to commit a crime, but rather to lying about his drug use when he purchased a handgun in 2018.
This is exactly the kind of regulatory law that has come under challenge from judges who say the Second Amendment broadly protects gun rights the way the First Amendment broadly protects the freedom of speech.
Last month, the 5th Circuit Court of Appeals in New Orleans tossed out the criminal conviction of a Mississippi man who was stopped by police last year for driving without a license plate. They smelled marijuana and found marijuana cigarette butts in his vehicle as well as two loaded guns: a 9mm pistol and a semi-automatic rifle.
Patrick Daniels, the driver, admitted he was regular user of marijuana, and he was charged with and convicted of violating the federal law that makes it a crime for anyone who is “an unlawful user of or addicted to any controlled substance … to possess any firearm.”
A federal judge upheld his conviction on the grounds that Daniels was not a “law abiding, responsible citizen” and because he violated a long-standing gun regulation.
But the 5th Circuit Court disagreed in a 3-0 decision and overturned his conviction in August. It did so based on last year’s Supreme Court ruling which expanded the scope of the Second Amendment.
The court’s opinion by Justice Clarence Thomas said an individual’s “right to bear arms” should generally prevail unless the government can show its gun restrictions are consistent with early American history when the Second Amendment was adopted.
Appellate Judge Jerry Smith said there is no early American history of restricting guns for addicted people, except a few ordinances that prohibited drunken people from firing off weapons at New Year’s celebrations.
“At no point in the 18th or 19th Century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another,” Smith wrote. Meanwhile, the gun possession law at issue was “the first federal law of its kind” and “was not enacted until 1968, nearly two centuries after the Second Amendment was adopted.”
Law professors who closely track the Second Amendment say Hunter Biden’s indictment for illegal gun possession could be challenged and dismissed on constitutional grounds.
“That is a distinct possibility,” said Jacob D. Charles, a Pepperdine law professor. He said the 5th Circuit was the only appeals court to rule directly on a challenge to the gun possession law, but other judges have been “skeptical of the government’s power to prohibit someone from possessing guns based on past nonviolent conduct.”
However, lawyers for the Biden administration are urging the Supreme Court to step back a bit and to uphold laws that restrict gun rights for “persons who are not abiding, responsible citizens.”
The administration appealed a 5th Circuit ruling in March that struck down a law that barred gun possession for persons subject to domestic violence restraining orders. There, too, the judges said there was no early American history of taking away guns from domestic abusers. The court overturned the conviction of a Texas man whom prosecutors described as a drug dealer who had been involved in five shooting incidents.
Solicitor Gen. Elizabeth Prelogar appealed, and the justices agreed to hear the case of U.S. vs. Rahimi in November.
“Governments have long disarmed individuals who pose a threat to the safety of others,” she said.
But even a high court ruling in that case may not save the federal law that forbids gun possession for those who used illegal drugs.
Thursday’s indictment accused Hunter Biden of two counts of making false statements when he denied his drug addiction while applying to a buy a gun at a shop Wilmington, Del.. There is a separate count of illegal gun possession.
Gun-rights advocates did not offer him support after the indictment.
“The Gun Owners of America opposes all gun control,” said Erich Pratt, a senior vice president of the group, “but so long as this president continues to use every tool at his disposal to harass and criminalize guns, gun owners and gun dealers, his son should be receiving the same treatment and scrutiny as all of us.”