In Hunter Biden’s case, that means finding historical antecedents for the federal law that prohibits those who use illegal drugs from purchasing or possessing firearms. Biden was indicted Thursday on three felony counts: making two false statements on a gun purchase form that he did not use and was not addicted to controlled substances, and illegally possessing a Colt revolver while he was using narcotics.
His lawyers have signaled their intention to use the high court’s ruling in Bruen as a basis for challenging the charges.
“Our response to the charge in court will point out that the United States Department of Justice, which is supposed to protect the constitutional rights of all Americans, by bringing its firearm charge, is disregarding the rulings of the Supreme Court and the Fifth Circuit and is seeking to punish Mr. Biden for exercising a constitutional right these courts have stated he has,” Biden’s lawyer, Abbe Lowell, told me.
That presents yet another layer of political discomfort for the president, whose administration has defended the constitutionality of the ban on gun ownership by drug users and would, presumably, maintain that position in Hunter Biden’s case as well.
This could also prove to be an instance of bad cases making bad law. First, the bad case: The counts on which Biden has been indicted are not often brought as stand-alone charges, absent other, serious misconduct. Biden had the gun for all of 11 days and never used it. Under an earlier, now unraveled plea agreement, prosecutors agreed to allow him to enter a pretrial diversion program — a deal that Biden’s lawyers assert is still in force and that in any event seems like a more appropriate sanction for his behavior.
As to bad law: Whatever happened in colonial times, modern-day America ought to be able to say that drug users shouldn’t have guns. Yet Biden has a reasonable chance — in the chaotic aftermath of Bruen, and especially given this conservative Supreme Court — of prevailing in his argument that the addict-in-possession ban violates the Second Amendment.
He could also attack the false statements charges on the theory that if the underlying law against addicts with guns violates the Second Amendment, a false statement about drug usage is no longer legally significant.
Most trial-level federal courts that have heard challenges to the law have upheld it. But the U.S. Court of Appeals for the 5th Circuit, the first appeals court to consider the issue, ruled the other way last month involving a man who said he smoked marijuana about 14 days a month but was not deemed high at the time of he was arrested and charged with illegal gun possession. After Bruen, the court said, the law, in place since 1968, was no longer constitutional.
“Throughout American history, laws have regulated the combination of guns and intoxicating substances,” wrote Judge Jerry E. Smith, a Ronald Reagan appointee. “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.”
The ruling looked to such statutes as a 1656 Virginia law that banned “shoot[ing] any gunns at drinkeing” — the worry was about conserving gunpowder or generating alarms about Indians attacking — and a 1771 New York law that barred citizens from firing guns over the New Year’s holiday because of the “great Damages” done by those “intoxicated with Liquor.”
“Given the prevalence of drinking at the Founding, that handful of laws puts the government on shaky footing,” Smith observed. “The government has failed to identify any relevant tradition at the Founding of disarming ordinary citizens who consumed alcohol.”
Notably, Smith was joined not only by Donald Trump nominee Don Willett but by Stephen A. Higginson, a Barack Obama nominee. In a concurring opinion, Higginson said that conclusion was compelled by the court’s historical approach in Bruen but lamented the potential implications of prioritizing an individual’s right to bear arms while ignoring that the right is grounded in the need to protect public safety.
Such rulings “will constrain the ability of our state and federal political branches to address gun violence across the country, which every day cuts short the lives of our citizens,” he warned. “This state of affairs will be nothing less than a Second Amendment caricature, a right turned inside out, against freedom and security in our State.”
Indeed. Is public safety threatened by a pothead with a gun? Not so much. By Hunter Biden with a handgun? He was probably more of a danger to himself, or so those closest to him figured, than to others.
But a society ought to have the discretion to make those judgments for itself. It shouldn’t be constrained in its decision-making by the rules of an era of flintlocks and muzzleloaders, long before school shooters and lockdown drills, opioid epidemics and drug gangs.
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