“In one sense, the Hunter Biden indictment just isn’t that remarkable, or interesting. Aside from the fact that it’s brought against the president’s son, it’s just plain vanilla gun charges, and the prosecution seems to have him dead to rights. He lied on Form 4473 — the federal form he was required to fill out when he purchased the weapon in question — by certifying that he was not illegally using drugs. He has since publicly stated that he was regularly using drugs, including crack cocaine, when he bought the gun. Thus, there’s overwhelming evidence he committed two related crimes, lying on the form and possessing the weapon itself. Federal law prohibits unlawful users of controlled substances from possessing firearms.
But these are not ordinary times, and in another sense, the Hunter Biden case is very interesting indeed. Ironically enough, it could ultimately end up undermining a key element of federal gun regulations. The case could be so threatening to federal gun control efforts that in less polarized times many Republicans would be supporting at least one element of Biden’s likely defense — that the prohibition against unlawful drug users owning guns is unconstitutional, at least as applied to him.
Some background is necessary. In 2008 the Supreme Court decided the case District of Columbia v. Heller, which established that the Constitution guaranteed an individual right to possess a weapon in your home, apart from any service in an organized militia. But the decision raised as many questions as it answered. Which precise types of firearms were covered by the Second Amendment? Which forms of government gun control regulations remained viable? And, critically, what kind of constitutional test should courts apply to gun control regulations after Heller?
The last question arguably mattered the most. But the Heller decision did not establish a test. Instead, it spoke of the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” It noted that the amendment protected the kinds of weapons that are ordinarily used for a “traditionally lawful purpose.” And it took pains to say that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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.”
The case kicked off years of additional litigation, and in the absence of clear guidance from the Supreme Court, lower courts established their own tests for firearms regulations, largely applying a form of “intermediate” scrutiny that left intact a wide range of gun control measures, including bans on so-called assault weapons and large-capacity magazines. It left untouched the standard prohibitions against weapons possession, including by unlawful drug users.
Then, in 2022, the Supreme Court dropped a nuclear bomb on state gun regulations. In New York State Rifle & Pistol Association, Inc. v. Bruen, the court did two things. First, it established that the Second Amendment didn’t just establish a right to “keep” a gun in the home for self-defense, it also established a right to “bear” a gun outside the home. The right to bear arms outside the home wasn’t unlimited, however, which brings us to Bruen’s second, and most important, holding. In his majority opinion, Justice Clarence Thomas established a new constitutional test for gun regulations. Rather than applying conventional legal tests for constitutional rights, such as subjecting gun regulations to intermediate or even strict scrutiny, those regulations now have to be evaluated using the “text and history” of the Second Amendment.
Put in plain English, that means that modern gun control measures can be sustained only if the government can point to historical analogues, with an emphasis on those existing at the time the Second Amendment was adopted or when the 14th Amendment (which made the Second Amendment applicable to the states) was ratified.
The result, quite simply, has been legal chaos. The history of gun regulation is not so neat and clean as to yield easy historical parallels to the questions at issue today; American legal doctrine has developed considerably since the colonial and Reconstruction eras. As a result, unless the government can draw a bright line between history and the present day, its gun control measures are in mortal legal peril.
The federal court rulings after Bruen have been dramatic. In United States v. Rahimi, the Fifth Circuit reversed the federal conviction of a man who possessed a weapon while subject to a domestic violence restraining order. In April, a federal district judge struck down the gun possession charges of a marijuana user. In June, the Court of Appeals for the Third Circuit, sitting en banc, held that federal law violated the Second Amendment rights of a nonviolent criminal to purchase a firearm.
And now Hunter Biden, who bought a gun as a nonviolent, unlawful drug user, is charged under the same federal statute at issue in each of the cases above. Arguably, Biden’s best defense to that charge is to join a host of other criminal defendants by challenging that count under Bruen’s text-and-history test. He just might win — and if he does, he will contribute to the dismantling of a key element of federal gun regulations.
My own view is that Thomas’s text-and-history test is deeply misguided. To take the Rahimi case as an example, American legal history is frankly dismal when it comes to protecting women from domestic violence. Should this longstanding historical failure have the power to determine modern legal doctrine? Similarly, prohibitions on drug use and possession largely date to the 20th century. Modern gun jurisprudence should not restore our nation’s laws to a deeply flawed, premodern phase.
Earlier this year, the Supreme Court granted the federal government’s motion to hear the Rahimi case, and oral arguments are set for Nov. 7. The court has an opportunity to right the wrongs of the worst aspects of its holding in Bruen. But unless it does, there may be few greater beneficiaries of a conservative legal doctrine than Hunter Biden himself. His ordinary gun charge landed in a time of legal chaos over gun regulation, and unless the Supreme Court says otherwise, expect that chaos to win.
David French is an Opinion columnist. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” @DavidAFrench“