Turley Outlines the Ironic Defense Hunter Biden Could Employ for Gun Charge

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Earlier in the week, we reported that the Department of Justice was planning on indicting Hunter Biden on a gun charge by the end of the month.

As my colleague Jen Van Laar explained, the plea agreement that the Biden team thought they had worked out with the DOJ blew up spectacularly. One of the issues that Judge Maryellen Noreika had with the diversion agreement was the broad immunity provided in the diversion agreement. But the defense is arguing that the diversion agreement related to the gun charge is in force because it was signed by both sides. The DOJ is countering that, arguing that the diversion agreement is as dead as the plea agreement and that the two sides were not in agreement on it. They’re arguing that because the probation officer and the Court never agreed to it, it’s not valid.


But as George Washington Law professor Jonathan Turley explains, Hunter Biden may find himself in the position of having to argue against positions his father has taken, taking more of an NRA line and arguing against the constitutionality of the charge.

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 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.”


Turley notes that if Hunter Biden goes down this path, he could also dip into more ironic arguments.

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. Judge 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.”

If Hunter goes down the route of arguing the charge is unconstitutional in the face of his father, that would be some sweet karma. “This could get pretty wacky, pretty fast,” Turley opined.

Indeed. Grab the popcorn; this may get interesting. How much fun would it be if Hunter debunked his father’s gun control arguments?

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