Hunter Biden, the son of President Joe Biden, was convicted on three felony gun charges Tuesday related to him purchasing and possessing a gun while using illegal drugs. Specifically, Hunter Biden was convicted of two counts of making a false statement on a form for saying he was not an illegal drug user when he purchased a gun in October 2018 and one count of illegally possessing a gun while using a narcotic.
The younger Biden’s best chances at a successful appeal, at least on the gun possession charge, could center on an argument made possible by our conservative Supreme Court.
The younger Biden’s best chances at a successful appeal, at least on the gun possession charge, could center on an argument made possible by our conservative Supreme Court. Biden will likely argue, as he has before, that the federal law prohibiting firearm possession by people with a history of substance abuse flies in the face of the Constitution. Biden’s appeal will hinge on how the D.C. Circuit Court of Appeals views the conservative Supreme Court’s recent Second Amendment decisions.
Biden’s argument would not be viable if not for this court’s reading of the Second Amendment. After finding in 2008 that the Second Amendment includes “an individual right to possess and carry weapons in case of confrontation,” a sea change in Second Amendment jurisprudence, the Supreme Court made it even harder for the government to impose gun control restrictions in 2022. Then, the court struck down a New York law that required individuals to show a special need for self-defense to obtain a license to carry a concealed weapon outside the home. The majority found no “historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” The majority created a new standard for determining when gun control restrictions could be upheld. Now, when determining whether a gun control restriction is constitutional, the court asks if it is “consistent with this Nation’s historical tradition of firearm regulation.” Make no mistake, this is a difficult standard for gun control advocates to satisfy, and that could Hunter Biden’s opportunity to win an appeal.
The late Justice Antonin Scalia, who authored the landmark 2008 opinion, did cabin it by saying “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” The question since then has been which other “longstanding prohibitions” the court will uphold, and which ones it will erase, under this expansive reading of the Second Amendment.
At least one federal court of appeals has already read the 2022 Supreme Court decision as requiring them to strike down the federal law barring illegal drug users from owning firearms. That case dealt with a marijuana user, not a cocaine user, as Hunter Biden was. In language that Biden’s team could rely on, that appeals court concluded that “our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage.” Hunter Biden’s best chance at a legal lifeline could sound the death knell for his father’s gun control agenda. But Biden’s appeal could depend on whether the Supreme Court narrows its 2022 ruling. We are expecting a ruling this month in a case that asks if a law prohibiting people subject to domestic-violence restraining orders from possessing firearms violates the Second Amendment. If the court narrows the scope of its 2022 ruling, as many expect that it will, that could be good news for gun control advocates such asPresident Biden, but bad news for his son Hunter Biden’s appeal. The bottom line is that Hunter Biden’s best chance at a legal lifeline could sound the death knell for his father’s gun control agenda. If Biden is able to successfully argue that his conviction, or at least part of it, should be overturned, then it will be thanks to rulings by a conservative Supreme Court that has thwarted his father’s political agenda at almost every turn. A legal win for the younger Biden, therefore, would not only hamstring the Biden administration, but it would also prevent every state in the nation, from passing common sense gun control measures.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
