WASHINGTON — Hunter Biden’s defense against the latest federal charges puts the president’s son at the center of a roiling debate over who is allowed to have a gun after the U.S. Supreme Court upended the Second Amendment legal landscape a year ago.
A federal grand jury indicted Hunter Biden Thursday on charges that he lied about his drug use to get a firearm and that he unlawfully possessed the gun while addicted to drugs. His lawyers immediately signaled they might bring a constitutional challenge to the indictment, noting recent court rulings they say support their view that a law barring drug users from having a gun violates the Second Amendment.
As President Biden campaigns to keep the White House, he faces the prospect of his son serving as a test case for the future reach of federal gun laws. The president has long advocated for stricter gun controls amid a nationwide surge in gun violence and mass shootings.
The Justice Department is set to go before the Supreme Court later this year to urge the justices to embrace a more expansive view of the types of federal gun regulations that are still allowed under the Second Amendment. The outcome of that case could affect any future fight Hunter Biden wages over whether he had a right to a gun notwithstanding his drug use. His case also could wind up in limbo if the Delaware judge puts it on hold until the Supreme Court rules.
Jeffrey Welty, a criminal law expert at the University of North Carolina at Chapel Hill’s School of Government, said judges and lawyers are hoping the justices offer more clarity about how to decide these types of constitutional challenges and “bring order to the chaos.”
The Supreme Court unleashed a torrent of litigation in June 2022 when the court’s conservative majority ruled 6-3 to strike down a New York law that restricted who could carry a handgun in public. The decision broadly stated that future fights over gun laws potentially violating the Second Amendment would turn on whether they were consistent with the nation’s “historical tradition of firearm regulation.”
Since then, courts across the country have grappled with how to do that historical analysis in practice. One federal judge in Mississippi even considered appointing a historian to advise him — he didn’t end up doing so — and called out the justices for putting him and his colleagues in the position of having to “play” a role they weren’t trained to perform.
“It’s indisputably a mess,” said Douglas Berman, a criminal law expert at the Ohio State University Moritz College of Law.
In November, the justices will hear arguments in United States v. Rahimi, which challenges the constitutionality of barring people from possessing a gun if they’re subject to a domestic violence restraining order. It’s not the same offense Hunter Biden is charged with, but deals with the same overarching federal law he’s indicted under that bans different categories of people from having guns for public safety reasons.
The Justice Department under Joe Biden is defending the law. It argues that the domestic violence provision follows “history and tradition because it disarms persons who are not law-abiding, responsible citizens” and focuses on the specific risks of future violence.
Even if the ruling in the Rahimi case doesn’t directly resolve whether the charges against Hunter Biden are constitutional, Welty said he could imagine the Delaware judge delaying a ruling “to get the benefit of what the Supreme Court says.”
‘History and tradition’
Hunter Biden’s legal team pointed to federal appeals court decisions this year declaring unconstitutional parts of the law under which he’s charged. Legal experts say those opinions feature analysis that could help the president’s son, but none have dealt with the same set of facts, leaving room for Special Counsel David Weiss and his team to push back.
In June, the 3rd U.S. Circuit Court of Appeals ruled in favor of a Pennsylvania man who was barred from having a gun because of a past conviction for making false statements to get food stamps. The majority of judges found that the government failed to show a “historical analog” that would justify stripping the man of his Second Amendment rights.
The 3rd Circuit covers Delaware, making that case especially relevant to any challenge that Hunter Biden raises, although it addressed a different section of federal law.
In August, the 5th Circuit did tackle the section Hunter Biden is charged under, finding “history and tradition” did not “justify disarming a sober citizen based exclusively on his past drug usage.” That court’s decisions aren’t binding in Delaware though.
Hunter Biden also faces two counts of lying about his drug use to buy a gun. That’s a separate issue from the core constitutional right to firearms, but Berman said it’s possible his lawyers could argue that those should be tossed out as well if a judge finds he had a constitutional right to the gun in the first place.
Separate from any Second Amendment tangle, Hunter Biden’s lawyers said they’ll argue that an earlier agreement they reached with the government for the president’s son to enter a diversion program instead of prison time is still valid.
There’s also the prospect of an entirely separate second indictment reviving tax-related charges that Hunter Biden had been prepared to plead guilty to before a deal with prosecutors fell apart amid questioning from the judge.
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