Hunter pleads not guilty, but will SCOTUS throw him a lifeline?

Hunter pleads not guilty, but will SCOTUS throw him a lifeline?
AP Photo/Andrew Harnik

As expected, Hunter Biden plead “not guilty” Tuesday morning to three federal felony charges relating to his purchase of a firearm at a time when he admitted to smoking crack cocaine “every fifteen minutes”. Today’s hearing lacked the drama and intrigue of his first hearing on the charges, when a plea bargain worked out by his attorneys and prosecutor David Weiss fell apart after the U.S. District Judge assigned to the case objected to its terms.


Under that original deal, Biden would have received a pre-trial deferment, allowing him to avoid prison and a felony record. Now he faces the theoretical possibility of more than two decades behind bars, though even if he’s convicted that sentence seems unlikely to be imposed.

Biden’s attorneys, however, are going to try to keep him out of prison altogether, in part by arguing that the laws he’s charged with violating are unconstitutional.

Hunter Biden arrived in the courtroom shortly before 10 a.m. ET. accompanied by the defense lawyers. The hearing lasted less than 30 minutes. The judge reiterated Hunter Biden’s conditions for release and said that he would be subject to random testing as he refrains from drugs and alcohol. He has been tested already a number of times, the judge said.

The case has placed Joe Biden’s family in the spotlight ahead of the 2024 presidential election, with scrutiny of Hunter Biden intensifying amid his indictment by a special counsel and the case unfolding against the backdrop of his father’s campaign.

Nearly two months after a deal with prosecutors fell apart in a dramatic courtroom scene, Hunter Biden was indicted last month in federal court on three counts tied to his possession of a firearm while using illegal drugs.

Two counts accuse him of lying on a federal form about his use of narcotics when he purchased a Colt Cobra revolver in Delaware in October of 2018. The third count claims he possessed a gun while using a narcotic.

Still open is a yearslong inquiry into Hunter Biden’s alleged tax evasion.

[Biden attorney Abbe] Lowell said Hunter Biden plans to fight the gun charges, which he argues are not constitutional. On Tuesday, Lowell said this would be among several motions filed by the defense “that won’t be a surprise.”


I’ve seen a lot of commentary suggesting that the Supreme Court’s Second Amendment jurisprudence could end up being a lifeline for Biden, but if that’s the case then it will probably be a federal judge’s reading of Bruen that saves him, not direct intervention from SCOTUS itself. While multiple federal courts around the country have concluded that the federal prohibition on gun ownership for unlawful drug users is unconstitutional, none of those cases are particularly close to Supreme Court review. A case out of Oklahoma is currently before the Tenth Circuit Court of Appeals, and while a three-judge panel on the Fifth Circuit also concluded that the federal law in question violates the Second Amendment in a decision released in August, the DOJ could appeal to an en banc panel or choose to petition the Supreme Court directly. Either way, the Daniels case, as it’s known, probably wouldn’t be taken up by the Supreme Court until next spring or fall at the earliest, and a decision would likely come too late to impact Hunter Biden’s case.

Instead, Biden’s attorneys will have to convince the federal judge in Delaware that he should abide by those lower court rulings in the absence of any contradictory opinions from the High Court. Lowell can point to the Third Circuit Court of Appeals (which includes Delaware in its jurisdiction) decision in Range v. Garland, in which an en banc panel determined that the federal prohibition on gun ownership for all those convicted of a crime punishable by more than a year in prison doesn’t pass the Bruen test, but Range isn’t a direct corollary to Biden’s case. Bryan Range was convicted of a misdemeanor offense for falsifying his income on a food stamp application, which barred him forevermore from lawfully possessing a firearm even though he received probation. Hunter Biden, on the other hand, is accused of lying about his active drug use when purchasing a firearm, as well as possessing a gun as an active user of narcotics.


If Biden’s case isn’t resolved with a plea deal (still a distinct possibility), there’s a decent chance that Biden could be cleared on the gun possession charge while still being convicted for lying when he purchased the firearm. And if the Supreme Court ends up taking the Range case (the government’s request for certiorari is due on Thursday of this week), there’s no guarantee that a majority of justices will side with the Third Circuit’s conclusion. I think they should, but that doesn’t mean it will happen.

Biden’s “not guilty” plea seems more designed to buy him and his attorneys some time to see how the legal landscape might change over the coming months than anything else. Maybe Lowell really will end up making a Second Amendment defense of Hunter if the case ultimately goes to trial, but for the moment I suspect he’s hoping that developments in Range (and perhaps Daniels) will help him get the most favorable terms possible in any plea agreement offered by Weiss.

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