Hunter Biden’s legal team is asking a judge to dismiss the gun charges against him by claiming that the Second Amendment protects their client.
Biden was charged with lying on a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473 while purchasing a gun from a Delaware gun shop. The son of President Joe Biden stated on a Form 4473 that he was not a user of illicit drugs. Around the same time the younger Biden was buying his firearm, he was addicted to crack cocaine. Lying on a 4473 is a felony.
Biden doesn’t claim he is innocent. His attorney claims that the prohibition of gun ownership by drug addicts is inconsistent with the historical tradition of firearms regulations.
“Because persons protected by the Second Amendment can no longer be denied gun ownership due simply to past drug use—a practice inconsistent with this nation’s historical tradition on firearm regulation—any false statement by Mr. Biden concerning his status as having used a controlled substance no longer concerns’ any fact material to the lawfulness of the sale’ of a firearm’ 18 U.S.C. § 922(a)(6),” Biden’s attorneys wrote. “Quite simply, asking about Mr. Biden’s status as a user of a controlled status is constitutionally irrelevant to whether he can be denied his Second Amendment right to gun ownership.”
After the Supreme Court’s opinion in New York Pistol Rifle Associations v. Bruen, the government could no longer use interest balancing to determine the constitutionality of a gun law. The government could only use the original text, tradition, and history of the Second Amendment from the founding era.
“In truth, the statute is indefensible under the Bruen framework, “Biden’s lawyer wrote. “Daniels appropriately recognized that the Framers were well aware of the problems caused by intoxication, but there is no historical precedent for prohibiting gun ownership by persons who had any history of ingesting intoxicating substances. Rather, the problems associated with intoxication were addressed by prohibiting certain conduct while intoxicated.”
President Joe Biden was unhappy with the result of the Bruen decision, but the senior citizen in the White House has not commented on his son’s defense using the ruling that the Biden administration saw as a travesty. The lack of comments makes many ask if there is a double standard in the Biden family.
Biden’s lawyer also cited the United States v. Rahimi case, which was recently argued in front of the Supreme Court. The case deals with a Texas man named Zackey Rahimi, who was caught with a firearm while being the subject of a domestic violence restraining order. The Fifth Circuit of Appeals ruled that the Constitution did not allow Mr. Rahimi to be charged with carrying a gun while under a protective order.
“Given the lack of any historical precedent for disarming citizens based on their status of having used a controlled substance, the fact that Section 922(g)(3) violates the Second Amendment is inevitable under the Bruen framework,” the lawyers wrote. “As the Fifth Circuit explained, prior to Bruen, courts would have addressed the issue of whether any defined class of people could be disarmed by examining whether that class of persons is sufficiently dangerous to justify disarming them. Id. at 353. ‘But Bruen foreswears that kind of review,’ the Fifth Circuit explained, ‘Bruen heads that analysis off at the pass.’ Id. While Congress could criminalize gun possession from someone who was actively intoxicated, or perhaps someone who at least actively had a controlled substance in their body, a prohibition on gun ownership by anyone who had at some time used a controlled substance is constitutionally overbroad under Bruen.”
The Justice Department (DOJ) was unhappy with the appeals court decision. Under pressure from Hunter Biden’s father, President Joe Biden, The DOJ filed for a writ of certiorari. The White House encouraged the Supreme Court to take up the case. The Biden administration strongly disagreed with the Fifth Circuit’s decision, which makes it ironic that the younger Biden’s freedom might rest with the Rahimi case.
While many on the pro-gun side of the gun debate are rooting against Hunter Biden, others see this issue as one that exceeds their dislikes for the Biden clan. They see this as a battle over an unconstitutional question on an unconstitutional form. They believe the Hunter Biden case can also highlight how hypocritical the elites in Washington D.C. are when it comes to their own members.
Whether the case is dismissed will be up to the judge. There is no timeline for the judge to rule.
About John Crump
John is a NRA instructor and a constitutional activist. He has written about firearms, interviewed people of all walks of life, and on the Constitution. Mr. Crump lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
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