New reporting indicates that if Hunter Biden is charged with a gun crime related to his admitted drug use, he’ll attempt to harness the Supreme Court’s far-right Second Amendment jurisprudence to his advantage. He should.
The president’s son is the target of a Justice Department investigation scrutinizing his purchase of a gun in 2018 — a time when he has said he was regularly using crack cocaine. Federal law bans drug users from owning guns. But the constitutionality of that law — like many other provisions restricting gun ownership — is newly in question after a precedent-rocking decision the Supreme Court handed down almost a year ago.
That Supreme Court decision was New York State Rifle & Pistol Association v. Bruen. The 6-3 ruling was the GOP-dominated court’s latest absurd expansion of the Second Amendment. As I explained in a previous post about a post-Bruen ruling from the right-wing 5th U.S. Circuit Court of Appeals, which struck down a law keeping guns from domestic abusers, the Republican-appointed majority in Bruen established a test that strikes down firearm regulations unless they’re “consistent with this Nation’s historical tradition of firearm regulation.”
So it makes perfect sense for Hunter Biden and anyone else charged with a gun-related crime to use whatever legal defense is available. And when it comes to a potential charge that the president’s son could face, reporting from both Politico and The New York Times note some recent precedent favoring the argument that he reportedly would make.
For example, a Trump-appointed judge in Oklahoma sided with a man charged with possessing a firearm as a controlled substance user — cannabis, in that case. The judge, Patrick Wyrick, characterized the Biden Justice Department’s argument as saying the man’s “mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm.” If the right to possess a firearm is fundamental, as our esteemed Republican jurists have decreed, then blocking that right for smoking weed is almost as whacked out as the Bruen decision itself.
To be sure, the courts haven’t all been siding with defendants on the issue. In a Texas case also involving a cannabis user, another Trump-appointed judge, Alan Albright, cited Bruen to reason that such a person isn’t even worthy of Second Amendment protection, because the right to bear arms is limited to the “law-abiding.” As Politico and the Times both noted, litigation pending in the 3rd U.S. Circuit Court of Appeals — which covers Delaware, where Hunter Biden is being investigated — could become quite relevant if the president’s son is charged. So, we can stipulate that Bruen is not a great work of judicial craftsmanship. But stripping rights from people for smoking weed or doing any drugs (Hunter has spoken of his cocaine use) doesn’t make sense, either. It’s all the more obscene for Biden’s Justice Department to effectively prosecute people for cannabis-related offenses when he has proclaimed that no one should be in jail for using or possessing the plant. Whether the president’s son will face incarceration is unclear, but if he raises the claim that his lawyers have telegraphed, he may have the better side of the argument against his father’s administration. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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