Will Hunter Biden wrap himself in the Second Amendment? That wouldn’t solve his problems with the IRS. But it might make the federal gun ownership law he’s accused of violating an unconstitutional dead letter. What do good pro-gun conservatives and no-gun liberals do if he takes that tack? Stay tuned.
To (legally) buy a pistol, federal law required President Biden’s son to say he wasn’t a drug user. He said he wasn’t, but allegedly, he lied. And he bought the gun. Now, a special federal prosecutor has indicted him for both lying on the form and illegally owning the gun.
Of course, under Supreme Court decisions of the past 15 years, virtually every American has a Constitutional right to own a gun. The hard and consequential legal question is whether or not – current federal law be damned – drug users have that right, too.
Fifteen years ago, the Supreme Court ruled in Heller that the Constitution gave every individual a right to keep a firearm in the home for defense. This had not been the legal consensus. The historian Jill Lepore points out in her book, These Truths, that in 1971, Chief Justice Warren Burger (appointed to his post by Richard Nixon) called a “fraud” the idea that the Second Amendment created an individual right – as opposed to the collective defense right implied by its language about “a well- regulated militia.” And as late as 1989, Lepore writes, the originalist and rejected Supreme Court nominee Robert Bork said the amendment clearly established a collective, rather than an individual right.
But that was then. This is now. The right to have a gun exists — and it’s expanding.
Last year, in Bruen, the Court extended its Heller doctrine in two significant ways. It said the Second Amendment also gave everyone a right to carry a weapon in public. And it said that right was pretty nearly absolute. The Court said the right to carry could be limited only for reasons that were applied when the amendment was ratified — i.e., in the powdered-wigs-and-muskets year of 1790. This calls into question virtually all gun regulation put into place over the past two centuries.
That is evidently what the Court intended. If “the Second Amendment’s plain text covers an individual’s conduct,” Justice Thomas wrote for the majority, “the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.’”
Arguably, this is originalism run amok. Unarguably, it is now the law of the land.
The right doesn’t extend to felons or the mentally ill, or allow anyone to carry arms in schools or other “sensitive places.” Does it extend to drug addicts or the targets of domestic violence restraining orders? Federal law says no. But in the light of Bruen, courts have been ruling otherwise.
But exactly how broad does the Supreme Court think the right to keep and bear arms really is? As David French, laying out Hunter Biden’s possible Second Amendment defense, in an opinion piece, “The Most Interesting Element of the Hunter Biden Indictment,” explained recently in The New York Times (and I wrote last August in Post Alley), the first opportunity to see how far the Court will take Thomas’ originalist doctrine will be its decision in Rahimi, which it will hear in the current term.
So far, Bruen has provided a narrow escape for one Zackey Rahimi. In that case, a woman had gotten a domestic violence protective order against Rahimi, who therefore under federal law couldn’t legally possess a firearm. The cops subsequently found that Rahimi had a rifle and pistol, in violation of the order. Rahimi appealed, claiming he had a Second Amendment right to have the guns, protective order or not. Two federal courts, including the conservative 5thh Circuit, ruled against him. Then, in June of 2022, SCOTUS came out with its Bruen decision. And the 5th Circuit took another look.
This time, Rahimi won. The circuit court didn’t pretend he was the kind of guy you’d normally want packing heat. It noted that “[b]etween December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”
Even so, the 5th Circuit judges felt that Bruen had left them no choice; they had to rule that the law keeping Rahimi from legally owning a gun was unconstitutional. The Biden Justice Department appealed. SCOTUS has now taken the Rahimi case, which will be argued in the coming term. The president of NYU’s Brennan Center for Justice, Michael Waldman, wrote recently that most of the justices won’t want to take the political heat for letting an alleged abuser off the hook – and making thousands of abused women less safe. Waldman may be right. But will SCOTUS really make such a quick U-turn? Don’t bet on it.
If the Supreme Court does uphold the 5th Circuit ruling, it will be only a short step away from ruling that the law under which Hunter Biden has been charged is unconstitutional, too. Applying Bruen to the case of a marijuana user convicted under that law – the recent statutes of Washington and other states notwithstanding, under federal law, marijuana remains a controlled substance — the same 5th Circuit that ruled for Rahimi has already found exactly that.
“Bound by [Bruen and recent rulings based on it],” the circuit court said, “we hold today that [the law under which Biden has been charged,] a decades-old felony provision of our federal firearms law is unconstitutional as applied to [the appellant,] Daniels.” And the circuit court didn’t figure this decision would be a one-off: Even under other circumstances, “it is hard . . . to avoid the conclusion that most, if not all, applications of [the law] will likewise be deficient.”
The prevalence of illegal drug use would seem to strengthen the case for not keeping drug use as a bar to gun ownership. SCOTUS has emphasized the breadth of Second Amendment rights, making it clear that exclusion from gun ownership should be the exception. Yet in 2020, more than 37 million Americans were legally disqualified as drug users. That’s a lot of exceptions
Why wouldn’t Hunter Biden choose a constitutional defense? Why wouldn’t he win?
If he does choose it, how will President Joe Biden — who has just established a White House Office of Gun Violence Prevention — and his largely pro-gun-control allies react to a Second Amendment defense that could help get Hunter off the hook and out of the headlines? How will the MAGA conservatives who favor gun rights, but have worked to turn Hunter Biden’s personal sleaze into an impeachable issue for his father, react to that use of their amendment? It could make for some awkward moments on both sides — and potentially, some entertaining role reversals. It could be healthy for all concerned. Or it could be yet another D.C. disaster.
Before that happens, we’ll see whether or not the Supreme Court will stick to its guns, as it were, on Second Amendment absolutism. If it does, Hunter Biden certainly won’t be the most dubious gun owner to benefit.
