Left: Hunter Biden (AP Photo/J. Scott Applewhite); Right: Special counsel David Weiss (AP Photo/Alex Brandon)
Hunter Biden’s lawyers continue to push for post-felony conviction acquittal by embracing Second Amendment arguments and the Supreme Court, but the Special Counsel’s Office isn’t having it.
In the aftermath of a federal jury’s conviction of President Joe Biden’s son on all three counts for lying that he was not an unlawful user or addicted to drugs to purchase and possess a revolver in October 2018, the defendant’s attorneys have insisted ahead of an eventual sentencing that their client should be acquitted in light of Supreme Court precedent, claiming that the statute under which Hunter Biden was convicted, U.S.C. § 922(g), will ultimately be found “unconstitutional” given U.S. v. Rahimi and New York State Rifle & Pistol Association v. Bruen.
Though the Rahimi decision held that accused domestic abusers subject to court orders could be temporarily disarmed without running afoul of the Constitution, the defense claimed that it was still bad news for prosecutors and “[e]ach count of conviction” in the case because the high court “again emphasized that firearm possession is presumptively a constitutional right and the only valid exceptions must be analogous to a historical exception that existed when the Second Amendment was adopted.”
Special counsel David Weiss filed a response on Monday blasting the defense for “numerous misstatements,” “incorrect contentions,” and meritless arguments about the Rahimi’s implications for Biden’s case.
“The government does not take the position in this case that the Second Amendment protections should not apply to the defendant simply because he is not ‘responsible,”” the special counsel said. “Indeed, the word ‘responsible’ was never used in the government’s opposition brief. The defendant’s principal argument is therefore irrelevant to the issues before the Court in this case.”
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“Rather,” Weiss continued, “the government makes a different argument here: that laws disarming ‘persons who are otherwise dangerous’ provide a sufficiently similar historical analogue to § 922(g)(3) as applied to the defendant.”
Prosecutors said the evidence in the case only showed that Biden’s “extensive crack cocaine use made his possession of a firearm dangerous” and that his convictions should stand as a result.
“The defendant exhibited those qualities when, for example, he stored his firearm in his unlocked truck that he parked on the lawn of Hallie Biden’s house where she lived with her young children, or when he purchased a speed loader and more damaging hollow point bullets along with his firearm,” Weiss argued, before again pointing to Hunter Biden’s own book admissions about his addiction. “For example, the defendant admitted in his memoir that his frequent use of crack cocaine led him to ‘darkest corners of every community,’ and he ‘bec[a]me dependent not only on a criminal subculture to access what [he] need[ed] but the lowest rung of that subculture—the one with the highest probability of violence and depravity.’”
“He recounted participating in numerous drug deals, including one during which a gun was pointed in his face,” the special counsel added. “This conduct makes him ‘analogous to other groups the government has historically found too dangerous to have guns.’”
Biden’s defense filed a reply of its own on Tuesday, criticizing the special counsel’s disregard of Justice Clarence Thomas’ dissent in Rahimi, which warned that the court’s holding “puts at risk the Second Amendment rights of many more.”
“As Justice Thomas noted, the same sort of dangerousness rationale was used to improperly disarm newly freed Black slaves after the Civil War,” the defense said. “The Special Counsel dismisses the thrust of Justice Thomas’ point because he was in the dissent, but the majority in Rahimi likewise explained the Second Amendment was based on the English Bill of Rights, which was enacted as part of the Glorious Revolution to limit the power previously abused by the Crown to disarm Protestants who the King deemed dangerous.”
Claiming that Weiss is treating the Second Amendment “like a game of horseshoes where close enough counts for something,” the defense asserted that there is no actual “Founding Era” support for criminalizing Biden’s possession of a gun while addicted to crack.
“We can look to how opium was regulated in considering a modern drug, like crack cocaine, just as we can look to how muskets were regulated when looking to modern firearms, like the Colt pistol that Mr. Biden briefly owned,” the defense concluded. “The Special Counsel invents its unsupported argument that the criminal violations that it seeks to impose on Mr. Biden are in any way analogous to how he would have been treated in the Founding Era because there was no Founding Era precedent that made his conduct a felony.”
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