Today's deep legal question: Will Bruen save Hunter Biden -- even as his father demonizes it?

Screenshots from alleged iCloud

Alternate headline: Second look at originalism and textualism? The Supreme Court decision that Joe Biden loves to decry as evidence of the court’s radicalism will get an endorsement from Hunter Biden’s lawyers, according to both the New York Times and Politico today.

According to sources at both publications, attorneys for the president’s son will argue that New York State Rifle & Pistol Association v. Bruen makes it impossible to charge Hunter with firearms offenses related to his drug use. Amusingly, the New York Times never even mentions the name of the case in its analysis, and you have to scroll through eleven paragraphs at Politico to find out which precedent they plan to cite.

And there may be a good reason for both of them to bury the actual case here, because the argument is actually indirect … and based on another case that hasn’t yet been decided. Let’s start with the NYT report, which to its credit does note the irony of a Biden claiming safe harbor under Bruen:

While it is not uncommon for defense lawyers to point to shifting precedents to stave off prosecution, the circumstances of this argument, like so many elements of the Hunter Biden saga, are striking: A president’s son is invoking a court decision his father has described as an affront to “common sense and the Constitution” — and staking that claim on a majority opinion written by Justice Clarence Thomas, a vigorous supporter of gun rights whom many Democrats see as having helped enable the gun lobby. …

One case the Hunter Biden team has cited is a challenge to the criteria used in the federal firearms background check system, which relies on a ubiquitous application known as a 4473 form, pending before the U.S. Court of Appeals for the Third Circuit, which includes Delaware. In that case, Bryan David Range, a Pennsylvania man who was denied a gun permit over a decades-old misdemeanor, is asking to be granted gun ownership based, in part, on Justice Thomas’s opinion.

That case, argued in February, is likely to be decided over the next several months.

It’s not even yet a precedent. No one knows yet how that decision will go. This is not the basis of a legal challenge — it’s the basis of a PR campaign, to which we’ll return later.

But even with that, Hunter Biden’s predicament has nothing to do with the issues in Bruen. It sounds as though the attorneys and the reporters all think that Bruen wiped out all regulation around firearms, but that is not the case — and Bruen said nothing about drug use or other rational prohibitions on firearm possession. In fact, that argument misses the point on Bruen, as the case was about carrying firearms rather than possessing them.

As such, the opinion doesn’t spend any time discussing restrictions on possession, but does note that rational restrictions on carrying weapons have been around a long time, and that the law under scrutiny in Bruen went way beyond a rational basis in attempting to stop people from carrying their firearms (from the syllabus):

(iii) Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and “surety” statutes. None of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime.

Politico falls into the same trap in its coverage where they explicitly cite Bruen:

The Gun Control Act of 1968 prohibits unlawful drug users from possessing firearms. The Bureau of Alcohol, Tobacco and Firearms says this ban applies to people who have admitted to using illegal drugs in the 12 months before buying a gun. Violators can receive up to 15 years in prison.

But the provision, long considered an unassailable gun restriction, now faces challenges. Last June, the Supreme Court undid decades of lower-court jurisprudence about the Second Amendment. In New York State Rifle & Pistol Association v. Bruen, the court’s six-justice conservative majority ruled that contemporary gun restrictions must be consistent with those of the founding era.

This new constitutional test presents a massive opening for people working to loosen gun restrictions, since firearm laws in America’s founding era were, in some ways, extremely permissive. The president, meanwhile, called the ruling deeply troubling and said it “contradicts both common sense and the Constitution.”

Bruen doesn’t have any impact on the Gun Control Act of 1968 (GCA). The GCA didn’t explicitly come up in the 2008 Heller decision either, which did deal with possession rather than carry — but it’s there between the lines. Justice Antonin Scalia specifically excluded “longstanding prohibitions on the possession of firearms by felons and the mentally ill,” in fact, all but certainly a reference to the GCA and similar state restrictions.

Similarly, the GCA did not come up explicitly in McDonald v Chicago two years later, a decision that solidified Heller‘s finding of an incorporated right to individually possess firearms unless restricted for rational reasons. McDonald also addressed prohibitions on possession rather than carrying, and Justice Samuel Alito once again implicitly reinforced the GCA:

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

In other words, none of the modern court’s rulings on Second Amendment issues over the last 15 years pertain to the GCA, the law under which Hunter Biden would be prosecuted. There may be an argument about selective prosecution under the GCA, a point raised by the NYT, as the Bureau of Alcohol, Tobacco, and Firearms rarely presses charges for violations of those restrictions without another federal charge related to it. That’s a more substantial argument — but it has nothing to do with Bruen, Heller, or McDonald. That is an argument for prosecutorial discretion, not the application of court precedents.

So why is this argument winging around the news media today? Likely, it’s a PR play to lash out at Justice Clarence Thomas for his Bruen decision and to erode his standing among conservatives. It might also be a signal to the Biden administration’s Department of Justice to drop the charges — as we know they’d love to do — and avoid the political consequences of that kind of “prosecutorial discretion.” If Merrick Garland cited Bruen as a reason to drop the charge, it would be idiotic — but the NYT and Politico might buy into it nevertheless.

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David Strom 4:30 PM | May 28, 2024