Hunter Biden gun rights appeal could place president in awkward political position

Gun Rights

President Joe Biden could be forced to walk a thin line to promote his gun control agenda while his son Hunter Biden‘s legal team considers appealing the first son’s conviction on gun-related charges all the way to the Supreme Court.

Hours after a jury convicted the younger Biden on Tuesday of lying on a federal form to purchase a gun by asserting he was not a drug user, lying to a federally licensed firearm dealer, and illegally owning the gun for 11 days, the president spoke before Everytown for Gun Safety’s annual conference, in which he bragged about his executive actions on gun restrictions and reinforced his support of an all-out ban on “assault weapons.”

“My predecessor told the [National Rifle Association] convention recently he’s proud that ‘I did nothing on guns when I was president,’ and by doing nothing, he made the situation considerably worse,” Joe Biden said, referring to former President Donald Trump‘s remarks at an NRA convention earlier this year.

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Following the Supreme Court’s summer 2022 decision in New York Rifle & Pistol Association v. Bruen, which expanded constitutional protections for the Second Amendment, Joe Biden said he was “disappointed” by the ruling, arguing it “contradicts both common sense and the Constitution, and should deeply trouble us all.”

But it is through the Bruen precedent that Joe Biden’s son may have a fighting chance to challenge Section 922(g), which creates nine disqualifiers for gun ownership, including unlawful use or addiction to a controlled substance. District courts in Texas and Oklahoma, along with a ruling by the Louisiana-based U.S. Court of Appeals for the 5th Circuit, have flung into question whether Section 922(g) will survive the Supreme Court’s new test.

Jake Charles, a professor at Pepperdine Caruso School of Law, said Hunter Biden has a “plausible” Second Amendment claim for the unlawful possession count given the 5th Circuit’s decision in a case known as U.S. v. Daniels. Last August, the 5th Circuit voided Section 922(g)(3), which punishes anyone who is an “unlawful user of or addicted to any controlled substance” in possession of a firearm by up to 10 years in prison.

But Charles posted to X that Hunter Biden’s charges for merely lying on the form most likely “aren’t gonna be ruled unconstitutional.”

The same day the president delivered his speech underscoring his efforts to impose stricter federal gun control policies, Hunter Biden’s attorney Abbe Lowell vowed to “continue to vigorously pursue all the legal challenges available to Hunter.”

Charles said it may not even be Hunter Biden’s appeal that causes the Supreme Court to weigh in on the constitutionality of Section 922(g) because his case is much further behind in the appeals process. The Daniels appeal is already pending before the Supreme Court, so the justices could decide to take that case rather than wait for the younger Biden’s case to develop.

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Joe Biden’s tightrope between supporting his son and supporting his party’s gun control efforts could soon become thinner. The Supreme Court is just days away from releasing a decision in the case U.S. v. Rahimi, which asks the court whether a person who is under a civil domestic violence restraining order is barred from owning a firearm, which is a violation of Section 922(g)(8).

If the Supreme Court were to rule in favor of Rahimi, it could give the president’s son the ammunition he needs to invalidate one of the disqualifiers that landed him a guilty verdict on one of the three counts he faced before a jury in Delaware federal court. But even if Rahimi fails to challenge Section 922(g)(8), the younger Biden might still have hope through the Daniels precedent.

Meanwhile, the president has made no secret about his love and support of his son — and his desire for Hunter Biden to be found innocent. But the political realities of representing the Democratic Party in the presidential election mean Joe Biden is likely to continue his tirade against guns in public, while behind the scenes, the Republican-appointed majority on the Supreme Court could become Hunter Biden’s saving grace.

Meanwhile, some Republican lawmakers are already becoming strange bedfellows with the president’s son after his guilty conviction, as many on the Right see the law behind Hunter Biden’s conviction as wrong in the wake of the Supreme Court’s embrace of strict scrutiny against gun control measures.

Rep. Thomas Massie (R-KY) posted to X on Tuesday that “Hunter might deserve to be in jail for something, but purchasing a gun is not it,” adding that “there are millions of marijuana users who own guns in this country, and none of them should be in jail for purchasing or possessing a firearm against current laws.”

During oral arguments on Nov. 7 over Rahimi, a majority on the high court seemed poised to uphold parts of the federal law barring domestic violence offenders from possessing guns. However, it is possible the justices could rule in a way that limits how the prohibition applies to people courts deem dangerous.

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Deciding Rahimi could also result in the justices sending cases such as Daniels back to the appeals court level to apply a new standard to Section 922(g), though it remains to be seen whether the justices will offer specific instruction pertaining to similar cases.

A decision in the case is expected by the end of June but could come as soon as Thursday or Friday this week, as the Supreme Court is poised to release more opinions.

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