Criminal charges against Hunter Biden for illegal gun possession could conflict with the new and broader interpretation of the 2nd Amendment that has gained traction in conservative courts.
President Biden’s son is not accused of using a gun to commit a crime, but rather of lying about his drug use when he bought a handgun in 2018.
This is exactly the kind of regulatory law that has been challenged by judges who say the 2nd Amendment broadly protects gun rights, just as the 1st Amendment broadly protects free speech.
Last month, the 5th Circuit Court of Appeals in New Orleans overturned the criminal conviction of a Mississippi man who was stopped by police last year for driving without a license plate. They smelled marijuana and found marijuana cigarette butts in his vehicle, as well as two loaded weapons: a 9mm handgun and a semi-automatic rifle.
Patrick Daniels, the driver, admitted to regular marijuana use, and he was charged and convicted of violating federal law that makes it a felony for anyone who is “an illegal user of, or addicted to, a controlled substance…” to possess any firearm.”
A federal judge upheld his conviction, saying Daniels was not a “law-abiding, responsible citizen” and that he had violated a longstanding gun regulation.
But the 5th Circuit disagreed, overturning his conviction in a 3-0 decision in August. This was done on the basis of last year’s Supreme Court ruling, which expanded the scope of the 2nd Amendment.
The court’s opinion, written by Justice Clarence Thomas, said that a person’s “right to bear arms” should generally prevail unless the government can demonstrate that its gun restrictions are consistent with early American history, as the 2nd Amendment was passed.
Appellate Judge Jerry Smith said there is no early history in the U.S. of restricting guns for addicts, with the exception of some regulations that banned drunk people from firing guns during New Year’s celebrations.
“At no time in the 18th or 19th centuries did the government prevent people who once used drugs or alcohol from owning guns another time,” Smith wrote. Meanwhile, the gun control law in question was “the first federal law of its kind” and “was not enacted until 1968, nearly two centuries after the passage of the Second Amendment.”
Law professors who closely follow the 2nd Amendment say Hunter Biden’s illegal gun possession charge could be challenged and dismissed on constitutional grounds.
“It’s entirely possible,” said Jacob D. Charles, a law professor at Pepperdine. He said the 5th Circuit was the only appeals court to directly rule on a challenge to gun ownership laws, but other justices were “skeptical of the government’s power to ban someone from owning guns based on a history of nonviolent behavior.”
But lawyers for the Biden administration are calling on the Supreme Court to step back and uphold laws that restrict gun rights for “persons who are not upstanding, responsible citizens.”
The government appealed a 5th Circuit ruling in March that struck down a law banning people subject to a domestic violence restraining order from owning guns. There, too, the judges said there was no early history in the United States of domestic violence being taken away by guns. The court overturned the conviction of a Texas man who prosecutors described as a drug dealer involved in five shootings.
Attorney General Elizabeth Prelogar appealed and the justices agreed to hear the case US vs. Rahimi in November.
“Governments have a long history of disarming individuals who pose a threat to the safety of others,” she said.
But even a Supreme Court ruling in this case could not save federal law that bans gun ownership for those who have used illegal drugs.
In Thursday’s indictment, Hunter Biden was accused of two counts of making false statements when he denied his drug addiction while applying to buy a gun at a store in Wilmington, Delaware. There is a separate charge of illegal possession of a weapon.
Gun rights advocates offered him no support after the indictment.
“The Gun Owners of America is opposed to all gun control,” said Erich Pratt, a senior vice president of the group, “but as long as this president continues to use every tool at his disposal to harass and criminalize guns, gun owners and gun dealers.” his son should receive the same treatment and scrutiny as the rest of us.”
Source : www.latimes.com