Special Counsel David Weiss announced plans earlier this week to seek a grand jury indictment of Hunter Biden on a gun charge by the end of September, after the collapse of a plea deal. But there’s a problem: The charge is based on a federal statute barring drug users from owning guns—a statute declared unconstitutional last month. Per a conservative-dominated appellate court, it violates the Second Amendment.
Where are the 2A-loving GOP lawmakers stepping forward to defend Hunter Biden’s Second Amendment rights?
As actor George Takei commented Wednesday in a post on X, formerly known as Twitter: “Hey MAGA! Hunter Biden is going to be indicted on a gun charge. This is your chance to show how much the 2nd Amendment means to you! No one should have their gun rights trampled upon, right? Anyone? Crickets …”
Weiss, a Donald Trump-appointee to the post of U.S. Attorney for the District of Delaware, has been kept on by Attorney General Merrick Garland, in order to wrap up his five-year investigation of Biden’s business dealings.
Under a plea deal announced in June, the president’s son agreed to plead guilty to two misdemeanor tax charges for failing to file federal income tax returns in 2017 and 2018; he also agreed to accept terms that would have enabled him to avoid prosecution on a separate gun charge.
The gun charge related to Biden’s purchase of a pistol in October 2018. Prosecutors said he lied on a federal form by stating that he was not using drugs at the time. In his 2021 memoir, “Beautiful Things,” Biden acknowledged that he was using crack cocaine when he purchased the gun. Biden, a first-time offender, only possessed the gun for 11 days before Hallie Biden, widow of his brother Beau, found the pistol and threw it out.
The June deal included what is known as a pretrial diversion agreement. The DOJ said it would not prosecute Biden on the gun charge provided he remain drug-free for two years and agree never to own a firearm.
But in July, District Court Judge Maryellen Noreika, another Trump appointee, put the proposed plea deal on hold, raising legal and constitutional concerns.
After Biden’ attorneys and prosecutors couldn’t reach an agreement on modifications to the original deal, Weiss was upgraded to the status of special counsel on Aug. 11 by Attorney General Merrick Garland. Weiss indicated that Biden might now be indicted on the gun charge. Weiss has also said he intends to bring the misdemeanor tax charges in either California or Washington, D.C., but did not say when those charges might be filed.
But just two days earlier, the strongly conservative Fifth Circuit Court of Appeals overturned the conviction of a Mississippi man, Patrick D. Daniels, that raises questions about the constitutionality of the gun law cited in the case against Hunter Biden.
During a traffic stop, police found two guns and a marijuana joint in Daniels’ car. Daniels later acknowledged using marijuana regularly, but wasn’t accused of driving under the influence. He was convicted and sentenced to nearly four years in prison In July 2022.
The three-judge panel’s decision found that drug users should not automatically be banned from possessing guns. The ruling only applied to states covered by the Fifth Circuit—Louisiana, Mississippi, and Texas. So it would not have an immediate impact on an indictment brought against Biden in Delaware.
But the conservative-majority U.S. Supreme Court has repeatedly limited options for federal and state lawmakers to pass gun control legislation, finding that the Second Amendment supports the individual right to possess guns.
The appeals court cited the 2022 U.S. Supreme Court decision known as New York State Rifle & Pistol Association v. Bruen, which said gun laws must have strong historical roots — a finding that led to challenges of many of the nation’s gun laws.
In the June 2022 Bruen decision, the Supreme Court supported a major expansion of gun rights, despite widespread public support for more gun safety regulations in response to the increasing number of mass shootings.
The ruling, written by Justice Clarence Thomas, struck down a long-standing New York law requiring people to demonstrate a particular need for carrying a gun in order to get a permit to publicly carry a concealed weapon.
President Joe Biden strongly criticized the Bruen decision in a statement, declaring that it “contradicts both common sense and the Constitution, and should deeply trouble us all.” National Rifle Association Executive Vice President Wayne LaPierre welcomed it as “another landmark win for constitutional freedom and the NRA.”
The AP reported that the Fifth Circuit is the highest court so far to declare the law banning drug users from possessing firearms to be unconstitutional. A federal judge in Oklahoma issued a similar ruling in February.
The decision by the Fifth Circuit panel was written by Judge Jerry Smith, a Reagan appointee.
Supertalk MississippiMedia quoted from the decision as follows:
“Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence,” Judge Jerry Smith wrote in the opinion. “Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side.”
The court compared Daniels’ case to that of an alcoholic, saying that the federal law “allowed alcoholics to possess firearms while sober.” Further, the court said there was no historical basis for stripping gun rights from non-violent drug users.
“The government asks us to set aside the particulars of the historical record and defer to Congress’ modern-day judgment that Daniels is presumptively dangerous because he smokes marijuana multiple times a month,” Smith continued. “But that is the kind of toothless rational basis review that Bruen proscribes. Absent a comparable regulatory tradition in either the 18th or 19th century, § 922(g)(3) fails constitutional muster under the Second Amendment.”
SCOTUS’ Bruen decision has set off a flurry of lawsuits aimed at gutting gun control legislation across the country.
The AP reported:
The Fifth Circuit, moreover, also ruled in February that the government can’t stop people who have domestic violence restraining orders against them from owning guns. The Supreme Court has agreed to hear the Biden administration’s appeal in that case.
Immediately after the appellate court’s decision in the Daniels case, the Department of Justice filed a one-page brief to the 11th Circuit Court of Appeals arguing that the Fifth Circuit “incorrectly decided” that the gun ban for marijuana users is unconstitutional. The 11th Circuit covers Florida, Georgia and Alabama.
At issue in the 11th Circuit is a lawsuit, originally filed by former Florida Agriculture Commissioner Nikki Fried, a Democrat, which seeks to uphold a Florida law that protects the right of medical cannabis patients to own and purchase a firearm.
If the 11th Circuit rules that the federal law is constitutional, then the issue would automatically go to the Supreme Court to resolve the conflicting appellate court decisions.
Biden’s lawyer, Abbe Lowell, has said he would challenge any effort to bring the gun case to trial. He argues that the original pretrial diversion agreement reached this summer “remains valid and prevents any additional charges from being filed.” He added that Biden has been abiding by the terms of that agreement.
But if the case were to go to trial, Biden’s lawyers indicated as far back as May that they were ready to raise the Supreme Court’s Bruen decision as part of their defense, The New York Times reported.
The Times pointed out the irony inherent in the case:
The circumstances of this argument, like so many elements of the Hunter Biden saga, are striking: A president’s son is invoking a court decision his father has described as an affront to “common sense and the Constitution” — and staking that claim on a majority opinion written by Justice Clarence Thomas, a vigorous supporter of gun rights whom many Democrats see as having helped enable the gun lobby.
And there’s always the possibility that the Supreme Court could issue a decision that could render prosecution of Biden on the gun case moot. But don’t expect House Republicans like Reps. Jim Jordan and James Comer to champion Hunter Biden’s Second Amendment rights anytime soon.