What Hunter's Conviction Doesn't Do...Yet

AP Photo/Matt Rourke

Hunter Biden was convicted on all gun charges. Frankly, he appears to have done a whole lot more than the gun charges, but it's a start. I only say that because he shouldn't get a pass on that particular bit when other people are doing time for the exact same thing.

But the law in question is deeply problematic. It basically makes people prohibited for what they do in their personal lives, something not in keeping with the history, text or tradition of the Second Amendment.

Over at Reason, they correctly note that this conviction doesn't settle the Second Amendment issue.

As a matter of statutory law, this always seemed like an open-and-shut case. But as a matter of constitutional law, the validity of Biden's prosecution is less clear.

In a motion to dismiss the gun charges, Biden's lawyers argued that Section 922(g)(3) is inconsistent with the Second Amendment. Last year in United States v. Daniels, they noted, the U.S. Court of Appeals for the 5th Circuit overturned a marijuana user's conviction under that law, rejecting the government's argument that his prosecution was "consistent with this Nation's historical tradition of firearm regulation"—the test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. Several other federal courts likewise have ruled that prosecuting cannabis consumers for illegal gun possession failed the Bruen test.

U.S. District Judge Maryellen Noreika, who presided over Biden's case, rejected his pretrial motion last month, saying he had failed to show that Section 922(g)(3) is unconstitutional on its face. But she said Biden could still challenge the law as applied to him if he was convicted.

That could prove to be a challenge for Biden. Unlike the typical cannabis consumer, he concedes that his drug use was excessive and out of control. While it is unreasonable to assume that all drug users are so irresponsible that their possession of guns would pose an intolerable threat to public safety, the argument is more plausible in Biden's case.

However you view Biden's suitability as a gun owner back then, his brief possession of a revolver did not injure or threaten anyone. Defense attorney Abbe Lowell emphasized that Biden never loaded the gun or removed it from the lockbox in which he kept it. The only plausible public safety threat, Lowell said, arose from an "incredibly stupid" decision by Hallie Biden, the widow of Biden's brother Beau. Hallie, whom Hunter had started dating in 2016, testified that she removed the gun from his pickup truck and tossed it into a trash bin behind a grocery store because she was worried that he might harm himself.

It's Judge Noreika's suggestion, though, that is the most interesting for me.

See, the truth of the matter is that Hunter Biden isn't going to just slink off to prison. I'm not saying he'll run, either, though I wouldn't rule that out if he thought he could get away with it. What I see happening is that the Biden family is going to talk out of both sides of its mouth for a time, so to speak.

While President Joe Biden continues to talk anti-gun rhetoric--which, frankly, was a little awkward yesterday considering everything--and run for re-election on his anti-gun platform, I figure Hunter will be appealing his conviction of Second Amendment grounds.

And based on Bruen, I think he's got a good chance or winning.

Back in the time of the Second Amendment's ratification, it was common to prohibit people from using a gun while drunk, but that's different than being a user of illicit drugs. Being drunk is an active state of intoxication while the law against drug users requires no such thing. As was discussed during the trial, the law only requires consistent drug use at the time of purchasing a firearm. 

That difference may well be enough to overturn the conviction and, by extension, the law itself.

Let's be real here. The folks involved in drugs that represent a problem have never seemed to have all that much trouble getting guns. Every day I see reports about arrests where guns and drugs are seized by authorities, often involving charges of possession of a firearm by a felon. They're getting guns easily enough.

Don't like drug addicts, though? Not a fan of gun control but kind of thing this one doesn't completely suck?

Let's also remember that this law is what prompted the Honolulu PD to demand gun licenses be turned in by people who had medical marijuana cards.

So yeah, I hope Hunter appeals and the challenge ends up ending this nonsense forever. It might be the only good thing he ever does.