After the spectacular collapse of his sweetheart deal with the Justice Department in court, Hunter Biden's lawyer angrily told the prosecutors in open court to "just rip it up." It appears, however, that the defense team does not want to shred one part of the deal: the diversion agreement to avoid any charge over his false statement to obtain a gun permit. The defense is now arguing that, since the two sides signed the agreement before the implosion in court, it is final and complete.
The Justice Department thinks otherwise. It is arguing that neither the probation officer nor the court agreed to the plea agreement to finalize it. Indeed, it was the sweeping immunity language buried in the gun charge section that led the court to throw a flag on the play. Accordingly, the Justice Department is now pledging to indict Hunter by the end of the month.
Hunter, however, is insisting that the Justice Department will have to pry the agreement from his cold, dead fingers. Indeed, the president's son may be channeling more from the National Rifle Association (NRA) than its catchline. If the court rejects the diversion agreement as executed, Hunter could be making an argument that will leave the Biden White House in something of a pickle.
One obvious attack against a charge is to argue that the underlying law itself is unconstitutional.
Under 18 U.S.C. § 922(g)(3), anyone who is an "unlawful user of or addicted to any controlled substance," including marijuana, is barred from possessing a gun and can face up to 10 years in prison.
However, recently the United States Court of Appeals for the Fifth Circuit ruled the law violated the Second Amendment in United States v. Daniels. The case involved a man who was arrested in possession of marijuana and two loaded firearms. The Fifth Circuit relied on the Supreme Court's decision in Bruen v. New York Rifle & Pistol Association, which established that firearms laws must conform with the nation's "historical tradition of firearm regulation."
President Joe Biden denounced Bruen as a virtual abomination and has been a vocal supporter of the underlying law. Hunter, however, may now find himself in strange company in seeking to avoid any federal charge.
In the appellate opinion, Judge Jerry E. Smith wrote that "Our history and tradition may support some limits on an intoxicated person's right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage."
That sounds tantalizingly familiar, but is it enough for Hunter to go full Wayne LaPierre?
If so, this would not be the first time that Hunter followed a path that his father has previously condemned in others. For example, for decades, Joe Biden has railed against "deadbeat dads" despite his son's long effort to avoid paying child support to Lunden Alexis Roberts. Hunter spent years fighting support for his daughter Navy, even after a court confirmed that he was her father. Joe Biden himself only recently acknowledged the existence of Navy after routinely excluding her from the list of his grandchildren.
Yet, the president may not be quite ready for his son to join actual hunters in advocating for sweeping gun rights protections, including for drug users.
In making the argument, Hunter would have to claim that references to gun ownership by "law-abiding citizens" in past cases like District of Columbia v. Heller and Bruen should not be read to exclude everyone who breaks the law.
Judge Smith cites a prior ruling in United States v. Rahimi, rejecting the federal ban on gun possession by people subject to domestic violence restraining orders. In that decision, the court held that the phrase should be read as "shorthand" alluding to "people who were historically 'stripped of their Second Amendment rights.'"
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The government has argued (and would likely argue in the Biden case) that there were laws from the 17th and 18th centuries barring people from publicly carrying or firing guns while intoxicated. However, the Fifth Circuit rejected the historical claim and noted that "under the government's reasoning, Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far."
The government has tried to use other laws barring guns to the mentally ill and dangerous individuals as historical analogs, but the court would have none of it. Indeed, Hunter could find himself arguing that people are too often denied rights by the government under claims that they are "insurrectionists." Sound familiar?
The government has pointed to how "Founding-era governments took guns away from persons perceived to be dangerous." However, the Fifth Circuit noted that those laws targeted unpopular people, including Catholics, as akin to traitors to the revolution. Smith wrote that drug users "are not a class of political traitors, as British Loyalists were perceived to be. Nor are they like Catholics and other religious dissenters who were seen as potential insurrectionists."
So, a rejection of the gun diversion agreement could prove an even greater diversion for the Biden family as Hunter embraced the very decisions and rights long opposed by his father. In the meantime, the Justice Department would be citing historical precedent used against Catholics (like the Bidens) as potential insurrectionists who cannot be trusted with weapons.
Of course, White House Press Spokesperson Karine Jean-Pierre could defend all of this by paraphrasing the NRA that the "only thing that stops a bad guy with a gun [case] is a good guy with a gun [case]."
