It’s been such a busy week for Second Amendment news that instead of focusing on specific topic for today’s Bearing Arms’ Cam & Co, I decided to invite The Reload founder and firearms reporter Stephen Gutowski on the show to hit a couple of the bigger stories: Hunter Biden’s plea deal and the Supreme Court’s consideration of the Rahimi case in today’s conference.
What ensued is a beefy discussion on both subjects, starting with the DOJ’s decision to allow Biden to enter into pre-trial diversion and avoid the possibility of prison for lying about being an unlawful user of drugs on the federal form he filled out when he purchased a handgun at a time when he was admittedly smoking crack cocaine throughout his waking hours. Was this a sweetheart deal or just a normal decision on the part of the U.S. Attorney? Gutowski thinks it may be a little of both, arguing that for a first-time offender like Biden it’s not necessarily unusual to offer a plea deal that avoids prison on similar charges while noting that it’s fairly rare for the DOJ to bring this as a primary charge in the first place. Instead, Gutowski says he’s spoken to legal analysts who say the charge is usually an add-on to more serious offenses; something to be used as plea bargain bait in lieu of charges that could result in much longer sentences if the defendant is convicted at trial.
That may be the case, though it would still mean there are several hundred similar cases we could compare Hunter Biden to, and I would be surprised if pre-trial diversion was the primary means of resolution in the majority of those complaints.
Gutowski’s a little disappointed that we won’t get to hear Biden’s attorneys argue that the federal statute in question is irrelevant thanks to the Supreme Court’s decision in Bruen, but SCOTUS does have a chance to weigh in on another federal statute: the prohibition on gun ownership for those who are the subject of a domestic violence restraining order. Zachey Rahimi was charged with that crime in the state of Texas, but his public defenders argue that the prohibition fails the Bruen test laid out by the Supreme Court because there are no historical analogues to the modern prohibition to be found either in 1791 or at the time the Fourteenth Amendment was ratified shortly after the Civil War. The Fifth Circuit Court of Appeals agreed with Rahimi’s attorneys and found that portion of federal law to be unconstitutional, and the DOJ appealed to SCOTUS shortly after that decision came down.
Rahimi is one of the cases the justices debated privately in their weekly conference today, and we could learn as early as Monday whether there are four justices ready to hear this case and flesh out the guidance they provided in Bruen. Gutowski believes the Court will accept the case, and he’s not convinced that the public defenders are going to win the day, at least with the same 6-3 majority we saw in Bruen.
I can’t disagree with Gutowski on either count, though it’s a semi-educated guess for both of us. The Supreme Court has turned away early challenges and emergency appeals to post-Bruen carry laws in New York and Illinois’ ban on “assault weapons” and “large capacity” magazines, but the Rahimi case is a little more ripe for review, having gone through the usual appeals process to wind up before the Court. And with Chief Justice John Roberts and Justice Brett Kavanaugh going out of their way in Bruen to note that “longstanding prohibitions” on gun ownership for felons and other prohibited persons shouldn’t immediately be called into question because of the Bruen decision, there’s a significant chance that the two justices will want to show some “moderation” when it comes to the specific statute in question.
How and if SCOTUS could square upholding a rather new and novel prohibition on gun ownership when the Fifth Circuit found no historical analogue that could justify the ban in question remains to be seen, however, and there’s no guarantee that Roberts and Kavanaugh are on the same page when it comes to who, exactly, are “the people” whose right to keep and bear arms shall not be infringed. My guess is that Roberts is more inclined to accept the DOJ’s argument that only “law abiding citizens” possess the right to keep and bear arms, but I suspect Kavanaugh would be more reluctant to go along unless the DOJ can provide some sort of limiting principle to their argument.
Again, it’s informed speculation on the part of both Gutowski and myself, but it made for a fun and interesting conversation and I encourage you to check out the entire conversation in the video window below.