Hunter Biden’s gun defense and the Second Amendment

Here’s an interesting question for the White House press corps to ask President Joe Biden, if he gives them the chance: How does he feel about his son Hunter using a Second Amendment defense to fight the gun charges against him?

After the younger Biden’s plea deal fell apart, the president’s son was charged Sept. 14 by federal prosecutors with, in essence, lying about his drug use on the requisite form for purchasing a .38-caliber handgun in 2018 and thereby illegally possessing the weapon. Of late, Hunter Biden’s legal team has signaled its interest in an opinion issued by U.S. Supreme Court Associate Justice Clarence Thomas that beefed up the power of the Second Amendment and potentially provided the younger Biden with a constitutionally based defense.

The federal charges, which relate to a time when Hunter Biden has said he was in the throes of drug addiction, came because he allegedly said otherwise on the form. That piece of paper, and others like it, generally have been viewed by most Democrats and some moderate Republicans as reasonable regulations on gun purchases, designed to keep the weapons out of the hands of the wrong people.

We agree with sensible restrictions on who can purchase guns, as we have written here many times, including after the Highland Park shooting in summer 2022, when someone who should not have had access to a weapon used it on a community celebrating the Fourth of July. And yes, we’d have drug addicts on our no-go list, along with felons and those individuals who are deemed “an immediate and present danger” to themselves or others. We’re borrowing language there from the red flag laws on Illinois books, which we urged Republicans to support last December.

“Illinois is known to have some of the toughest gun laws and regulations that the Constitution allows,” we wrote that September and would write again today. “But if (firearm owner identification) files are not kept up to date and related regulations are not rigorously enforced, the state’s citizens are not adequately protected.”

Originalists and absolutists tend not to agree with us on that position. Last summer, the Supreme Court struck down an ancient New York law that put restrictions on carrying guns outside the home. The 6-3 majority opinion in the case, New York State Rifle & Pistol Association v. Bruen, was authored by Thomas, who wrote that “only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

“Historical tradition” is doing a lot of work there. But that decision, potentially a huge expansion of Second Amendment protections, sent chills down the spines of those who support sensible gun control in the context of constitutional protections, just as it emboldened those who want to see gun ownership unleashed from owner cards, background checks and other contemporary reasonable regulations necessary for all our safety.

Which brings us back to Hunter Biden and his allegedly falsified form. Biden’s attorney, Abbe Lowell, told CNN on Sept. 14 that “the constitutionality of these charges are (sic) very much in doubt.”

It’s a fascinating situation that, like so much else in the matter of the younger Biden, threatens to create awkward questions for his father and the White House.

Republicans surely will try to squeeze political benefit out of a Biden defense that relies on the opinion of Thomas, the locus of so much recent progressive scorn. And President Joe Biden, who already has expressed dismay at that decision, may well be in the difficult situation of saying that he still disapproves of the majority ruling except in the matter of his own son. Meanwhile, the rest of America will get a lesson of what can happen when political or moral principal runs up hard against personal benefit and familial love. People don’t generally talk so much about that.

All that said, we have no problem with Lowell using the defense that he has signaled his intention to use, assuming the case actually goes to trial. The Supreme Court decision is the Supreme Court decision, whether or not we or anyone else agreed with it. It is now the rule of law, and an attorney is bound to find and craft the best possible defense that can be mustered for the client. The legal system depends on that, and Hunter Biden is entitled to get a full-throated defense using whatever decision his attorney thinks can best help his client’s case. And we sure as heck see the potential in this one.

But this situation, yet to fully unfold, certainly comes with the kind of baked-in conflict and irony that belongs in a play. Potentially, Republicans looking to amplify the Hunter Biden trial will be minimizing the impact of a decision that many of them loved at the time, even as the White House will be quietly hoping that a decision they very publicly hated will be enough to get gun charges against the president’s son dismissed. Truly a topsy-turvy set of events.

We will have to see how everything plays out.

But our position remains that the younger Biden should not have lied, as alleged, and at that moment should absolutely not have had access to a potentially deadly weapon.

We think most reasonable Americans will join us in that belief, even as the extremists swap places for their own gain.

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