5th Circuit Ruling on Federal Gun Statute Could Potentially Help Hunter Biden
The U.S. Court of Appeals for the Fifth Circuit in New Orleans found the 1968 law barring illegal drug users from having firearms unconstitutional.
The U.S. Court of Appeals for the Fifth Circuit in New Orleans found the 1968 law barring illegal drug users from having firearms unconstitutional.
The appeals court only affects districts in Louisiana, Mississippi, and Louisiana. Therefore, don’t believe all the headlines that make you think this will directly help Hunter Biden.
But the ruling could set a precedent.
The Fifth Circuit struck down statute 18 U.S.C. § 922(g)(3), which bars “an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).”
The Court cited the Supreme Court case U.S. v. Bruen. That case changed “the framework that lower courts must use when analyzing gun restrictions.”
Cops found marijuana and two loaded firearms when they searched Daniels’ car. Daniels was sentenced to four years and three years of probation.
The Court’s decision throws out Daniels’ sentence.
Hunter Biden has been charged under the same statute in Delaware. The U.S. Court of Appeals for the Third District has Delaware in its jurisdiction, so if it has a similar case and comes to the same ruling, it could affect Hunter.
It’s also possible the DOJ could use the 5th Circuit’s ruling to work out a new plea agreement.
“Even though Hunter Biden’s situation is readily distinguishable from that of Patrick Daniels, it’s possible the Justice Department could rationalize that the 5th Circuit’s ruling supports its exercise of discretion to give Biden deferred-prosecution treatment (as currently proposed, two years of probationary conditions followed by dismissal if the conditions are met) in a plea agreement,” former Assistant U.S. Attorney Andrew McCarthy told Fox News.
I agree with the Court. There is a period at the end of the Second Amendment. The words “but,” “unless,” or “however” do not exist in the amendment.
“In short, 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,” wrote Judge Jerry Smith. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
It shocks me that courts have to explain the amendments, especially the Bill of Rights. Our Founders worded the document in a way that it shouldn’t confuse anyway and fit in with society no matter how it changes.
“Even as a marihuana user, Daniels is a member of our political community,” declared Smith. “Therefore, he has a presumptive right to bear arms. By infringing on that right, § 922(g)(3) contradicts the plain text of the Second Amendment.”
The Court also dismissed previous rulings because those “exist to ensure a competent military” because impaired men cannot properly perform their duties.
Smith wrote, “The government has failed to identify any relevant tradition at the Founding of disarming ordinary citizens who consume alcohol.”
The Court then dissected the words “unlawful user.” I’ve learned in my few months of law school that the meaning of words matters more in law than it does in any other concentration. I majored in English! This is interesting:
The statutory term “unlawful user” captures regular users of marihuana, but its temporal nexus is vague—it does not specify how recently an individual must “use” drugs to qualify for the prohibition. Daniels himself admitted to smoking marihuana fourteen days a month, but we do not know how much he used at those times, and the government presented no evidence that Daniels was intoxicated at the time he was found with a gun. Indeed, under the government’s reasoning, Congress could ban gun possession by anyone who has multiple alcoholic drinks a week from possessing guns based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far.
The times before the Second Amendment had restrictions on gun ownership, such as Loyalists and Catholics. (WHY do people hate Catholics so much?)
But does that matter? No.
Glorious (emphasis mine): “The predecessors of the Second Amendment gave concrete language to possible limits on the right to bear arms. Yet that language was not adopted. Instead, the People ratified the unqualified directive: ‘shall not be infringed.’ U.S. Const. amend. II. Usually, when the relevant lawmaking body does not adopt language in a draft, we presume that the stricken language was not intended.”
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
The charge isn’t that he’s a drug user, it’s that he lied on the federal background check form 4473 and that’s punishable by up to 10 years in prison. Lying on ANY federal form is punishable by prison time.
No, the charge is literally the same statute that I cited.
We know that the DOJ hasn’t correctly charged Hunter Biden for anything.
He’s guilty of perjury on the document. For all of us who have filled those forms out we know that the document explicitly states that it is unlawful to lie on it and that lying is punishable as perjury.
I don’t really care what law this DOJ tried to hide Hunter Biden under in order to sweep this minor part of his rampant criminality under the rug.
18 USC 1001?
The actual text that someone has to sign on the background check form:
I also understand that making any false oral or written statement, or exhibiting any false or misrepresented identification with respect to this transaction is a crime punishable as a felony under Federal law, and may also violate State and/or local law.
This part only addresses the veracity of responses on the form.
From the ATf, itself (from an ATF web page starting with –
For Immediate Release
Tuesday, January 10, 2023
Robert J. “Bob” Troester
, United States Attorney
http://www.justice.gov/usao-wdok
Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions):
[…]
NEMORY ZAHID RAMOS CASTRO, 22, of Oklahoma City, pleaded guilty on January 5, 2023, for making a false statement during the purchase of a firearm. […] At sentencing, Castro faces up to ten years in federal prison on both counts.
JOSHUA DAVID MOSELEY, 31, of Harrah, Oklahoma, pleaded guilty on September 6, 2022, to making a false statement during the purchase of a firearm. […] At sentencing, Moseley faces up to 10 years in federal prison.
Just “making false statements”.
Literally. There is a reason why I linked to the statute. The statute has MANY sections to it. He is charged with the one in the case and another section of the statute. https://reason.com/2023/07/26/hunter-biden-shouldnt-go-to-prison-for-violating-an-arbitrary-gun-law/
You mean, they charged him with only the part of the statute that he would be found not guilty of, while avoiding charging him with the statute he clearly violated?
Why… whyever would they do that, do you think?
He’d be guilty of it b/c he had a firearm and was a drug user. There are other parts of the statute, too, but the one specified in this case is definitely one of the sections.
I don’t think anyone disagrees with that. But he still lied on the 4473 by saying he wasn’t an illegal drug user or addicted in order to obtain that firearm, which is a separate felony offense. I don’t think the 4473 cites the statute that they mean.
To those of us who have been around the RKBA/2A community for a long time, we know that they have been getting as aggressive about the actual drug status as they are about the perjury on the form. It is unlike them *generally* to not charge both, and then let the plea bargain go where it may. Their goal appears to be to disqualify as many Americans from gun ownership as possible. Same with FFL’s – they are using the most infinitesimal of paperwork errors as cause to revoke a Federal License, where before, even under Obama, they would usually give you a couple of days to correct the simple/stupid ones.
Hunter Biden was not charged with lying on the federal gun application. He should have been but the DoJ never pressed the issue and charged Hunter for the lie. He was only originally charged with possessing a weapon while “knowing he was a user of illegal drugs” in violation of federal law. Which of course, should have gotten him a 10 years jail sentence but since Big Daddy knows the head of the DoJ he got a sweetheart plea deal on the charge and avoided any jail time right before the 2024 presidential election.
Perjury is only a crime if the lie is material. If the underlying prohibition against drug users owning firearms is unconstitutional, then a false denial that one is a drug user is immaterial and can’t be charged as perjury, regardless of what the form says.
All true.
But, do you think if it was anyone else, that would stop the corrupt ones from trying to charge it anyway?
I think it’s five, not ten, years for making a false statement, punishable under 18 U.S.C. §1001.
The U.S. Court of Appeals for the Fifth Circuit in New Orleans found the 1968 law barring illegal drug users from having firearms unconstitutional.
That has nothing to do with perjury.
Personally, I would agree with the decision. Even moreso, however, is the insanity of having the whole child support BS factor into background check criteria. That has no business being anywhere in that, at all.
He is charged under the SAME STATUTE cited in the article.
Literally. There is a reason why I linked to the statute. The statute has MANY sections to it. He is charged with the one in the case and another section of the statute. https://reason.com/2023/07/26/hunter-biden-shouldnt-go-to-prison-for-violating-an-arbitrary-gun-law/
“It shocks me that courts have to explain the amendments, especially the Bill of Rights. Our Founders worded the document in a way that it shouldn’t confuse anyway and fit in with society no matter how it changes.”
“It is, perhaps, a fact provocative of sour mirth that the Bill of Rights was designed trustfully to prohibit forever two of the favorite crimes of all known governments: the seizure of private property without adequate compensation and the invasion of the citizen’s liberty without justifiable cause…. It is a fact provocative of mirth yet more sour that the execution of these prohibitions was put into the hands of courts, which is to say, into the hands of lawyers, which is to say, into the hands of men specifically educated to discover legal excuses for dishonest, dishonorable and anti-social acts.”
–H.L. MENCKEN
To change white into black, hire a painter or a lawyer.
–Danish proverb
“(WHY do people hate Catholics so much?)”
Because they are imagined to have divided loyalties to a “foreign king.” Atheist George Smith posits that the reason the concepts of freedom, citizen sovereignty and representative government originated in Western cultures rather than elsewhere, is that societies in which secular authority and religious authority were not the same individuals led to high-level infighting between authorities, a distraction that reduced their ability to impose social groupthink and totalitarianism.
I take Constitutional Law starting in September. I am going to have a blast as an originalist! “Why do I need to write out in 250 words why the 1st Amendment applies to this case. You just need to read the amendment!”
That’s not enough. The 1st amendment says Congress shall make no law abridging the freedom of speech, but what is that freedom, and does the law in question abridge it? For that we have to look outside the text. We have to know what freedoms an ordinary person in 1788 would have thought he had, and what he would have considered an abridgement.
We just had a federal judge in the DC circuit pronounce that the Right to Free Speech is not absolute. “…Shall make no law” sounds pretty absolute to me. Consequences are a different matter.
Same with the Regulatory state making laws as they go, citing delegation from Congress. Yet Article 1 § 1 says “*All* legislative Powers herein granted shall be vested in a Congress of the United States…” Congress has ceded their basic authority to the Executive Branch. The Judicial branch has usurped legislative authority through case law.
Unless “All” doesn’t mean “All.” Maybe this is what Lawrence Tribe calls “Meta Law?”
The judge is right. The freedom of speech is not absolute, and no serious person has ever claimed that it is.
And no, “shall make no law” sheds absolutely no light on the question. Saying that Congress can’t make laws that abridge the freedom doesn’t tell us one thing about what that freedom is, and therefore what abridges it.
Your second point is likewise wrong. The constitution vests all legislative power in the Congress. Nowhere does it say, or even imply, that Congress can’t delegate that power. The “non-delegation doctrine” is not in the text, it’s not implied by the text, and if you want to uphold it you have to look outside the text.
He lied on a federal form if he can have it or not isn’t the issue.
He was LITERALLY charged under the same statute cited in this case. From the link in my story: “Hunter Biden was charged under 18 U.S.C. Sec. 922 (g)(3)”
From the Brionjre prosecution cited above:
Code Section
18 U.S.C.§ 922(a)(6)
Offense Description
Making a False Statement During the Attempted Purchase of a Firearm
Sorry, the Brionjre prosecution was not one of the ones I included in the comment above from the ATF coming down hard on “lying on gun forms”.
BRIONJRE MARTAI ODELL HAMILTON, 22, of Oklahoma City, pleaded guilty on October 10, 2022, to making false statements during attempted purchases of firearms. […] At sentencing, Hamilton faces up to 10 years in federal prison on all four counts.
Nitpick: It’s not U.S. v. Bruen. Bruen was the then-Superintendent of New York State Police, and among others was named as a defendant in the case.
The case was New York State Rifle & Pistol Association, Inc. v. Bruen, or NYSRPA v. Bruen for short.
———
Corrections aside, I don’t see how this could help Hunter Biden, except indirectly. His “gun charge” isn’t that he’s a user of controlled substances; it’s that he lied about it on the 4473 form.
Now, if the “user of controlled substances” prohibition in Section 922(g)(3) gets tossed, then that question on the 4473 is invalid, and that might give Hunter some breathing room (not that he needs much, with the ridiculously-lenient sweetheart deal he got), but he still lied when he filled out a federal form.
All that said, whether getting that prohibition tossed helps Hunter or not, I’d be glad to see it go. Not because I want drug addicts to have easier access to firearms, but because most if not all of Section 922 is an unconstitutional mess that we don’t need, and any ruling that weakens it is welcome.
The decision won’t help Hunter Biden that much as it’s (and IANAL) an ‘as applied’ decision.
Interestingly enough, the Obama-appointed Higginson’s concurrence spills the beans about what the left are afraid of relating to Bruen … namely, that most gun control legislation won’t pass constitutional muster under the Bruen precedent.
And to clarify Hunter’s charges, he’s being charged under a subsection of 922(g), which lists 9 separate conditions which would disqualify one from possessing firearms.
While Biden certainly could have been charged with lying on a federal form, he was not. A shrewd and forward-thinking prosecutor might have made that decision in light of how Bruen is shaking things up …
And strangely, the court held in its ruling that it only applied to this one defendant.
At the time these restrictions were imposed there was reason to fear that if Catholics were allowed to be armed they would rise up and try to seize power. The Glorious Revolution was still in people’s memory, and so were the several Jacobite attempts to reverse it in the first half of the 18th century. By the time the Bill of Rights was adopted these fears had faded, as had the more recent fear of Loyalists. And the 1st amendment ensured that the federal government would not discriminate against Catholics (though states were still allowed to).
The text says “… the right of the people to keep and bear Arms, shall not be infringed” and yet it’s widely accepted that the right of violent felons and mentally ill to keep and bear arms is to be denied. What is the legal basis for that infringement and how does it not apply to other criminals such as drug users?
There seem to be some assumptions getting applied that aren’t in the text. I’m not complaining there is no absolute right to bear arms, just unclear on the basis for it.
The basis is that that is not an infringement, because the RKBA doesn’t include those things, and never did. Once again, saying that a right shall not be infringed, or abridged, or encroached upon, or whatever other verb you like, doesn’t tell you squat unless you first define what that right is. It certainly doesn’t mean that the right in question is absolute.
All it means is that once you know what the right is, and therefore what laws infringe it, your task is over. There is no balancing to be done, because the people who adopted the amendment already did the balancing.