Friday Round Up! 9/15/23

Looks like Hunter Biden is going to have a hard time winning the 2024 election! Oh wait...

Hunter Biden’s laptop firearm application is back in the news following his indictment on Thursday on one count of illegal possession of a firearm while being a drug user, and two counts (under two different sections of the statute) for lying on his application to purchase a firearm. The indictment comes five years after the Delaware U.S. Attorney’s office began its investigation (so the statute of limitations was about to run) and almost two months after Biden’s plea deal broke down in court.

I’m not sure why this is news…the gun charges, in addition to being rare for this type of conduct literally have nothing to do with the president, so who cares? But here we are so I’ll offer what will likely happen next: Hunter’s lawyers will argue that the pretrial diversion agreement he originally reached with the Justice Department is still effective, because that was (by DOJ’s own court admission) separate from the tanked pleas agreement. The Justice Department will counter that the pretrial diversion agreement wasn’t officially signed by a probation officer, and therefore is not valid. So there will be quibbling over technicalities.

But it’s also possible that the charges could get thrown out on constitutional grounds. That’s because the Third Circuit, in which Hunter’s case is being brought, recently overturned a conviction for a man who had been barred from possessing a gun for being a convicted felon (one of the disqualifying criteria for possessing a firearm under federal law); the man had previously lied about his income on a food stamp application. The Third Circuit was relying on a Supreme Court opinion from last year, New York State Rifle & Pistol Association Inc. v. Bruen, which struck down a New York law allowing the state to deny permits if people did not show demonstrate a need to carry firearms outside the home, on the grounds that such restrictions were inconsistent with the Framers’ intent. (The opinion was written by Justice Thomas.) In August, the Fifth Circuit — which isn’t binding on Delaware courts — ruled that the federal prohibition on drug users owning firearms was unconstitutional as applied to marijuana users. If I were Hunter’s lawyers, I’d argue that being a convicted felon is more consequential than being a drug user, and that given that the Third Circuit has decided that even the former has a right to own firearms, the court should follow the Fifth Circuit’s lead in the latter situation as well.

There is no small irony that Republicans can only celebrate this charge against Hunter Biden because he purchased his firearm from a federally-licensed firearms dealer, which requires background checks on all purchases. This is the same background check that they have consistently blocked from implementing for private sales, including at gun shows (I wrote about the gun show loophole in this Substack piece connecting the thread between the Timothy McVeigh bombing in Oklahoma City and our patchwork of state and federal gun laws). It stands to reason that, if barring drug users from owning firearms is such a major priority, we should implement universal background checks to ensure that the 22% of gun owners who obtain a firearm without undergoing one can be screened, amirite? (For the record, I would be totally on board with that!) Of course, these gun rights fanatics may ended up regretting what they wished for if, in the end, the constitutional arguments laid out above succeed and the 6-3 opinion authored by their favorite originalist justice ends up letting Hunter Biden off the hook. I, for one, will let out a maniacal laugh.

Anyway, there are bigger fish to fry, such as the recusal motion Trump’s lawyers filed in his federal January 6 case and the recent revelations from the unredacted Georgia Special Grand Jury report, which Renato and talk about here. We’ll be covering more non Hunter Biden related things next week, so stay tuned (happy to take suggestions in the comments on what you’d like to hear about, since there is a lot going on)!

Articles worth reading this week:

• If you read one thing this week, this excerpt of McKay Coppins’ biography of Mitt Romney for The Atlantic is a truly depressing read into the absolute hollowness and cynicism infecting a huge swath of our elected leaders right now

Upcoming events:

• NEW, DATE/TIME TBA: Class guest speaker Colin Clarke, Director of Research for The Soufan Group. I thought of Colin as I was writing my last post on Yevgeny Prigozhin, as he has followed and written about Prigozhin’s The Wagner Group over the last several years. He will offer some great insight connecting what we are covering in class with the war in Ukraine and Russia’s global operations

• Freedom Academy Book Club discussion with Steve Vladeck, author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, Tuesday, October 17, 3 p.m. EDT. Zoom link will be sent to paid subscribers at noon, and a recording of the discussion will be posting the following day. (Please check out the new Freedom Academy Book Club tab, where I will collate our book club discussions!)

That’s it for this round up — more to come this week!