Is One of the Charges Against Hunter Biden Unconstitutional?
Is One of the Charges Against Hunter Biden Unconstitutional?
How strange that the GOP’s great guardians of the Second Amendment aren’t leaping to his defense.
HUNTER BIDEN WAS INDICTED again last week, following the embarrassing breakdown of his original plea deal in open court in July. Under that agreement with the Justice Department, he was to admit to two misdemeanor tax charges while entering into a “pre-trial diversion program” relating to a separate charge involving a handgun he purchased in 2018 while suffering from a drug addiction. The new, four-page indictment says nothing about his tardy tax filings, instead claiming that Biden (1) lied to a federally licensed gun dealer, (2) made a false claim on the federal firearms application used to screen applicants, and (3) possessed an illegally obtained gun for eleven days, from October 12 to October 23, 2018. While Republicans blasted the original plea as a “sweetheart deal,” this time around Donald J. Trump posted on his Truth Social platform that “the gun charge, is the only crime that Hunter Biden committed that does not implicate Crooked Joe Biden.”
Conspicuously missing from the GOP response to Hunter Biden’s indictment is a full-throated defense of the Second Amendment. Never mind that the right-leaning U.S. Court of Appeals for the Fifth Circuit has already deemed one of the charges lodged against Hunter Biden unconstitutional. It’s apparently all that Special Counsel David Weiss could come up with.
THE BACKSTORY BEARS MENTIONING HERE. Donald Trump nominated Weiss to be the U.S. attorney for Delaware; after Senate confirmation, he was sworn in in February 2018. The next year, he began an investigation into Hunter Biden’s tax records, and possibly, his business dealings with a Ukrainian gas company—a storyline that intersects with Trump’s first impeachment for asking Ukraine to announce an investigation into Joe Biden, his rival for the presidency—and a Chinese energy company. In December 2020, Hunter Biden announced that he was under investigation by DOJ for his “tax affairs.” In February 2021, newly inaugurated President Biden did as presidents usually do and asked dozens of U.S. attorneys appointed by Trump to resign. Weiss was not on the list.
The gun charges stem from Hunter Biden’s alleged purchase of a Colt Cobra handgun in Delaware “on or about” October 12, 2018. During the purchase, he filled out a form stating he was not a drug user when he in fact was an addict at that time. (He has been clean since 2019.) Hallie Biden—the widow of Hunter Biden’s late brother, Beau Biden—reportedly found the gun and tossed it into a dumpster, claiming she feared Hunter Biden would use it to take his life. (She and the divorced Hunter Biden were then having a romantic affair.)
In May 2023, two IRS whistleblowers involved in the Weiss investigation went to Congress, claiming that Hunter Biden was getting special treatment by Weiss. After the initial plea deal involving misdemeanor tax charges fell apart in July under pointed questioning by the federal judge overseeing the case, Attorney General Merrick Garland on August 11 elevated Weiss to the role of special counsel in the Hunter Biden probe. The gun charges followed. Yesterday, Hunter Biden filed a civil lawsuit against the IRS, claiming that the whistleblowers illegally shared his confidential tax information with the press and Congress. So far, no charges have been lodged regarding the Ukrainian and Chinese business dealings, despite speculative rumblings about possible violations by Hunter Biden of the Foreign Agents Registration Act. The general statute of limitations for federal crimes is five years. Given that the probe began in 2018, the clock is ticking for Weiss to act.
BEFORE TURNING BACK to the gun charges filed against Hunter Biden last week, let’s revisit one other relevant bit of background. In June 2022, the U.S. Supreme Court, with its newly cemented right-leaning majority, handed down its decision in New York State Rifle & Pistol Association v. Bruen, striking down a New York state law requiring applicants for a handgun concealed carry license to show “proper cause.” In his opinion for the majority, Justice Clarence Thomas looked to what he coined the “historical tradition of firearm regulation” as the touchstone of Second Amendment law. Under that new test, the 112-year-old New York statute was deemed unconstitutional, opening up a whole new world of Second Amendment jurisprudence. The ruling now has courts getting into their time machines to travel back to who-knows-when in order to decide whether longstanding gun laws will fall in the twenty-first century.
The third of the three counts in the indictment charges Hunter Biden with violating 18 U.S.C. § 922(g)(3), which bars an individual from possessing a firearm if he is an “unlawful user” of a controlled substance. But just last month, in a case called United States v. Daniels, the Fifth Circuit applied Thomas’s new test to § 922(g)(3), and found the law unconstitutional under the new standard. The court explained:
Throughout American history, laws have regulated the combination of guns and intoxicating substances. But 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. A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War. Section 922(g)(3)—the first federal law of its kind—was not enacted until 1968, nearly two centuries after the Second Amendment was adopted.
In Daniels, the defendant “admitted that he had smoked marihuana since high school and was still a regular user.”1 It’s not clear what evidence the government intends to use to prove that Biden was “an unlawful user of or addicted to any controlled substance” while in possession of a firearm “in or affecting commerce” (the latter language is required for federal jurisdiction). Reportedly, his heavy drinking habit progressed to a crack cocaine addiction that was exacerbated by a messy divorce and the death of his brother from brain cancer. In his 2022 memoir, Beautiful Things, Biden wrote about his drug problems, which millions of Americans share. (Over 111,000 lives were lost to overdoses in just the twelve-month period ending in April of this year.)
Since Bruen, courts have invoked the “historical tradition” test to declare unconstitutional a law aimed at keeping guns from people with domestic violence restraining orders against them and to strike down a statute banning gun ownership for those under felony indictments, while acknowledging that “certainly valid public policy and safety concerns exist.” Around the same time that Bruen came down, an overwhelming majority of House Republicans voted against the Protecting Our Kids Act, a gun safety bill introduced approximately three weeks after nineteen children and two adults were gunned down at Robb Elementary School in Uvalde, Texas. Only five Republicans voted for it, including Chris Jacobs (R-N.Y.), who was forced by the party to resign his seat as a consequence.
Of course, this entire tale smacks of hypocrisy and intellectual dishonesty. Two days before the Biden indictment dropped, House Speaker Kevin McCarthy announced an impeachment inquiry over unspecified “serious and credible allegations into President Biden’s conduct” that “paint a picture of a culture of corruption.” Undoubtedly, McCarthy and his enablers hope that Hunter Biden’s shortcomings will somehow unravel his father’s presidency. The problem for the GOP is that the full weight of DOJ couldn’t come up with anything more serious than a former addict son whose gun possession is likely protected by the far-right Supreme Court’s rewrite of the Second Amendment. Thud.
Yes, the court spelled it “marihuana” with an “h.” Some federal and state statutes retain that older spelling.
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