The outcome of an indictment against the president’s son over a gun-related charge could rest on a Supreme Court ruling on whether the Second Amendment affords drug addicts the right to bear arms.
Hunter Biden was indicted on September 14 in Delaware on three counts relating to his alleged unlawful possession of a Colt Cobra revolver while using and being addicted to a narcotic substance, which carry a combined maximum sentence of 25 years in prison. He is due to appear in federal court on October 3.
On Tuesday, his lawyer, Abbe Lowell, wrote in a letter to a judge that Biden will plead not guilty, and he has previously argued that the charges against his client were politically motivated by “improper and partisan interference” on the part of MAGA Republicans.
In fighting the case, Biden’s lawyers may utilize the currently conservative-leaning Supreme Court. Shortly after the charges were announced, multiple outlets reported his legal team had signaled it might challenge the constitutionality of the gun laws he is accused of violating.
In June last year, the Supreme Court ruled that a law in New York making it a crime to possess a gun without a license violated the Second and 14th Amendments, and ordered lower courts to assess whether modern firearms regulations were consistent with the text and “historical understanding” of right to bear arms.
It held that this didn’t mean that the Constitution could only apply to challenges that the founding fathers foresaw, nor that the right to bear arms was limited to weapons available when it was drafted, but rather that modern laws “impose a comparable burden on the right of armed self-defense” to analogous precursors.
The ruling sparked a wave of reassessments of local gun laws. In August, an appeals court overturned the disarming of a man in Mississippi who had been a “nonviolent drug user” on the basis that “history and tradition” did not justify it, despite supporting “some limits” on an intoxicated person’s right to bear arms.
Douglas Berman, a law professor at the Ohio State University Moritz College of Law, told Bloomberg the Supreme Court’s 2022 ruling had made gun laws “indisputably a mess,” while Jeffrey Welty, a professor of public law at the University of North Carolina School of Government, said legal professionals were hoping it would now “bring order to the chaos.”
Government lawyers are expected to argue in front of the Supreme Court for greater clarity on another restriction on people with a domestic violence restraining order in November, which legal experts have suggested could have broader implications and could decide the fate of Hunter Biden’s potential challenge.
Newsweek approached Lowell via email for comment on Friday.
The constitutional challenge would mean Joe Biden’s son would be appealing for federal gun restrictions to be loosened while his father has called for them to be made stricter, though the president’s views on part of the law the younger Biden is being prosecuted under remain ambiguous.
While Biden has repeatedly stated he himself is a gun owner, he has previously said that the Second Amendment was “never absolute” and he has signed executive orders intended to make gun sellers more “accountable” for the people they sell to.
“We could have the odd situation of the son of a president who is calling for stricter gun laws challenging these charges as violating his Second Amendment rights,” William Devaney, a former federal prosecutor, told USA Today. “Like any criminal defendant, he’s going to use the laws and the arguments available to him, regardless of what his personal beliefs may or may not be.”
Newsweek approached the White House via email for comment on Friday.