The prosecution rested its case against Hunter Biden this week, and they seem to have done quite well. But Hunter’s lawyers countered with a new request to have the gun charges against him tossed because they violate his Second Amendment rights. I dive into why that’s probably a stronger argument than the other defense they’re putting up in court.
No matter how things turn out, whether Hunter is convicted or helps expand the recognized scope of the Second Amendment, the high-profile case is likely to affect his father’s election rematch against Donald Trump.
But the election hasn’t been having the expected effect on gun sales this year. They’re down through the first five months of the year. But I explain why that might be a good sign for the country headed into a heated November.
Plus, John Correia of Active Self Protection joins the podcast to discuss YouTube’s latest gun content crackdown.
Analysis: The Second Amendment is Hunter Biden’s Best Shot [Member Exclusive]
By Stephen Gutowski
The prosecution laid down a strong hand in its case against Hunter Biden over illegal gun possession in court this week, but the President’s son may have an ace up his sleeve.
In evidence ranging from Hunter’s own description of his drug addiction from around the time period of his October 2018 gun purchase in his autobiography to his conversations about doing drugs he had with his daughter and ex-girlfriends to drug residue being found on the leather pouch he kept his gun in, the government went a long way in establishing that Biden was addicted to drugs when he bought the revolver. That’s a key point of contention in the case since all of the charges center on Biden’s status as an active drug addict. Convincing the jury that Biden acquired his firearm during a relatively brief window when he was no longer using is going to be the primary task for the defense team when their arguments begin on Monday.
That’s looking like a tall task, but a new filing on Friday reveals a backup plan that may fare better: claiming the prohibition on drug users owning guns violates the Second Amendment.
Now, this defense is also something of a longshot because most judges who’ve heard challenges to the federal prohibition on drug users possessing guns have upheld the restriction. For instance, Federal District Judge C.J. Williams recently found the ban stands even under the history and tradition test established by the Supreme Court in New York State Rifle and Pistol Association v. Bruen.
“[U]nder the more robust historic analysis demanded by Bruen, the Court is persuaded that Section 922(g)(3) withstands a constitutional attack,” Judge Williams wrote. “Congress made it illegal for unlawful drug users to possess firearms for the common sense and obvious reason that someone using illegal drugs, in possession of a firearm, poses a real danger to the community.”
Citing 2010’s United States v. Yancey, he found chronic drug users are a similar threat to society as the dangerously mentally ill because they lack self-control.
“It follows, then, that barring unlawful drug users who pose a danger to society is consistent with the history of firearm regulation at the time the Second Amendment was adopted,” he wrote.
But there is a growing body of case law that backs up Hunter’s contention that the lifetime ban on drug users owning guns is unconstitutional–at least in some circumstances. In US v. Daniels, a federal appellate panel found violence was a key component to disarming even drug users during the Founding Era.
“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,” Fifth Circuit Judge Jerry E. Smith, a Ronald Reagan appointee, wrote for a unanimous panel. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
In US v. Veasley, another federal court came to the same conclusion.
“For drinkers, the focus was on the use of a firearm, not its possession. And the few restrictions that existed during colonial times were temporary and narrow in scope,” Eighth Circuit Judge David Stras wrote, rejecting a facial challenge to the statute. “Disarmament, on the other hand, was not an option. There was even less regulation when it came to drugs.”
While many of the early cases that have invalidated charges on gun possession by drug users have centered around marijuana, a Ninth Circuit panel recently invalidated charges against somebody who police caught with cocaine.
“As for Duarte’s remaining convictions—drug possession and evading a peace officer—we do not know whether either crime traces back to an analogous, Founding-era predecessor because the Government failed to proffer that evidence,” it wrote in US v. Duarte. “Based on this record, we cannot say that Duarte’s predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.”
The panel noted there likely aren’t historical analogues for disarming drug users because drug use itself wasn’t criminalized during the Founding Era.
“Criminalizing drug possession, in particular, did not appear to gain significant momentum until the early 20th century, with the passage of such laws as the Food and Drug Act of 1906 and the Harrison Narcotics Tax Act of 1914,” the panel wrote in a footnote. “Before then, what we now think of as ‘illicit drugs,’ such as opium and cocaine, ‘were . . . legal in the United States’ for a long stretch of this country’s history.”
So, it’s probably a more straightforward argument to make than one that relies on a jury believing a few short weeks of claimed sobriety puts Hunter outside the addict designation under the law.
Additionally, while the judge denied Biden’s initial facial challenge to the federal law prohibiting drug users from possessing guns, his new request for acquittal on Second Amendment grounds narrowed the claim to how prosecutors applied the law in his case. That lowers the bar for success since Hunter’s lawyers now just have to prove the charges against him, in particular, are unconstitutional rather than every conceivable charge against anyone under the law in dispute. They plan on doing that by emphasizing the younger Biden’s lack of a violent record or even accusations he had any plans to use the gun in an offensive manner.
“[T]here is no evidence that Mr. Biden is violent or has any history of violence,” Biden’s brief reads. “In fact, all the evidence that the government admitted failed to show the gun was ever loaded or used and the bullets (save for two Ms. Biden said she did something with) confirms [SIC] that fact.”
Biden’s lawyers pointed to the dangerousness standard established in Daniels as reason to believe the charges violate his Second Amendment rights.
“Daniels makes clear that, at a minimum, there would have to be an actual danger posed from active drug use and physical possession, and not just some prediction of future dangerousness based on regular drug use and the ability to take physical possession of a gun,” they wrote. “The exception the Special Counsel hopes to invoke focused on ‘the misuse of weapons while intoxicated,’ but there is no possible misuse of a weapon by an intoxicated person who owns a gun that is not in his physical possession.”
His lawyers doubled down on that point, saying the government itself had shown Biden wasn’t dangerous–especially during the time he owned the gun. In fact, they noted there wasn’t evidence he’d ever fired the gun or informed anybody else he’d even bought it.
“Nobody testified that Mr. Biden ever showed the weapon to anyone, much less brandished the weapon in any threatening or offensive manner,” Biden’s brief reads. “Again, the government’s evidence more than suggests it was never loaded or fired the weapon. The only witnesses to even see the gun after Mr. Biden bought it and left with it in its own case were Ms. Biden who was the one who took it from a compartment and brought it into public (and threw in [SIC] a trashcan), Edwards Banner who also took the gun he found and carried it in public, and then Lt. Millard Greer who recovered the gun. Mr. Biden was not even present on any of these instances, so he could not have used the gun in a threatening or offensive manner.”
Still, these arguments may well fail to convince the judge in Hunter Biden’s case. She previously dismissed his claim the law was unconstitutional on its face without engaging in the kind of historical analysis required under Bruen. It’s possible that could happen again with the more narrow as-applied challenge. Or the judge could do the analysis and still find the charges against Hunter constitutional.
But, given how the facts of the case have unfolded thus far, the Second Amendment may end up as Hunter Biden’s best hope.
Podcast: YouTube Further Restricts Gun Videos (Ft. Active Self Protection’s John Correia) [Member Early Access]
By Stephen Gutowski
This week, we’re discussing the new restrictions YouTube has put on gun content.
That’s why we’ve got the head of one of the largest gun channels on the platform. John Correia runs Active Self Protection, which has generated over 1.8 billion views on videos analyzing real-world self-defense encounters. He’s also spent nearly a decade dealing with YouTube’s varied and often vague moderation guidelines.
The new rules primarily target creates who build their own firearms or use automatic fire in video. But they also affect anyone who uses “high capacity” magazines in their videos, without explaining what meets that standard.
Correia said he’s not sure how much of an impact the new rules will have on his channel, which already sees its content age-gated on a regular basis. But he argued they would probably have a significant effect on some of the largest gun channels on the platform. He also argued YouTube has a right to police its website as it pleases, but the company bowing to pressure from gun-control groups and politicians made the move more concerning.
He explains how Active Self Protection deals with the constant problem of social media moderation, given its incredible impact on the business. Correia said the company has spent more time and effort building out its own operations to supplement the revenue it brings in from YouTube. He argued that was the only practical way forward for many creators who focus on topics social media companies tend to be squeamish about.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel. An auto-generated transcript is available here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Analysis: It’s Probably a Good Sign Americans Aren’t Rushing to Buy Guns Ahead of the Election [Member Exclusive]
By Stephen Gutowski
Every month of 2024 has seen a decline in gun sales compared to previous years, which suggests Americans aren’t as concerned about the outcome of the presidential election as polling might indicate.
That’s especially true given that 2024’s sales levels have been down not just compared to previous election years, like record-breaking 2020 or even 2022, but also compared to last year. An industry report found sales fell 7.2 percent year over year in May. That came after they dropped 11.2 percent the month before that and 7.4 percent the month before that.
The downturn is bad for the firearms industry. But, given the way gun sales have served as something of a national chaos meter, it may be a good sign for the country as it heads into another tumultuous November.
It’s a bit of a counter-intuitive trend since Americans are telling pollsters they believe the election could lead to new political violence. In fact, it’s one of the few things Americans seem to agree on these days. In a poll taken by Reuters/Ipsos just last month, 68 percent of adults said they “were concerned that extremists will resort to violence if they are unhappy with the election outcome.” Only 15 percent said they weren’t concerned.
Usually, concerns over political violence and new gun bans are strong motivators for people to visit their local gun shop. Americans of all shapes and stripes tend to dislike being told what they can’t own and prefer having the option of self-sufficiency when things start to look grim. They also tend to pay closer attention to those two factors when a presidential election rolls around.
Now, to be fair, fear of new restrictions or political chaos aren’t the only things that drive gun sales. Look at 2020. Both factors played a huge role in the record-smashing sales, but it was the incredible uncertainty of the early onset of the COVID pandemic that drove long lines outside firearms stores across the country. The uncontrolled spread of a novel and deadly virus created everything from runs on grocery stores to meat shortages to police short-staffing to prisoner releases–all of which are well outside the fears that trigger gun buying in a typical election year.
General fear and chaos aren’t the only other drivers for gun sales, either. The seasonal swings in sales, with annual declines in the summer and increases in the fall, are driven largely by demand for hunting. Sport shooting as a pastime, the philosophical appeal of joining an armed populace as a bulwark against tyrannical rule, and the general desire for self-protection unconnected from specific current events are also common motivators.
But maybe people should be more worried about where things are headed in November? The rematch between President Joe Biden and Former President Donald Trump is effectively tied, ensuring an outcome that will make large swaths of the country deeply unhappy.
To start with, the most common driver of election year sales spikes is the possibility of new gun restrictions. That’s certainly present in this election, perhaps even regardless of the outcome. It is, of course, much more likely if Biden is re-elected since he has already pushed the limits of executive restrictions on firearms via the ATF’s rulemaking process in his first term. His pistol-brace ban, so-called ghost gun ban, dealer licensing expansions, and export restrictions play the same tune as Trump’s bump stock ban but turned up to 11. Biden’s primary policy promise during the campaign has been to ban popular firearms like the AR-15, in stark contrast to Trump’s promises to remove certain gun restrictions.
The possibility that Biden, or even Trump, could impose new gun restrictions is the sort of thing that has traditionally caused gun owners to stock up on whatever they think could be banned.
Then there’s the potential for violence in November. After all, Trump supporters stormed the Capitol Building in an attempt to undo the last election. He’s vowed to pardon many of the January 6th rioters.
His rhetoric has ramped up as well. He’s repeatedly called his opponents “vermin” and accused certain migrants of “poisoning the blood of our country.” He just told Dr. Phil that “sometimes revenge can be justified.” He’s teased the idea of running for a third term and advocated for the “termination of all rules, regulations, and articles, even those found in the Constitution.”
“We love this guy,” Trump said of Sean Hannity in a December interview. “He says, ‘You’re not going to be a dictator, are you?’ I said: ‘No, no, no, other than day one. We’re closing the border, and we’re drilling, drilling, drilling. After that, I’m not a dictator.’”
These are usually the kinds of comments that startle gun owners. Of course, gun owners also don’t usually pick somebody who can’t legally own a gun to be their primary political proponent without so much as a debate over the decision.
Political violence isn’t a problem limited to the right either. Trump’s election could also spark a violent backlash from the far-left in the vein of the 2020 riots.
As the Reuters poll shows, Americans appear to perceive this potential danger. But they aren’t having the prototypical American reaction: arming up.
So, why is that?
There are a few potential reasons. The first is the country has reached market saturation after the gun-buying bonanza that was 2020. That would also explain why gun sales have, outside a brief period at the end of 2023, continued to slide since then. There may also be a similar effect at play from multiple previous cycles of panic buying AR-15s and other guns commonly targeted by “assault weapons” bans, such as the post-Sandy Hook rush.
Then there’s the question of how closely Americans are even watching this election. The public is not happy to be faced with a 2020 rematch. A Pew survey from April found about half of Americans would replace both Trump and Biden if given the chance. Traffic to news sites and TV ratings are down significantly from 2020. People haven’t been as engaged through the beginning of the campaign season and may not be paying attention to the factors that typically surge gun buying.
Lastly, most Americans may just be making a calculation that everything going on is less of a threat than pundits or politicos are making out. Gun owners may be confident the expanded view of Second Amendment protections articulated by the Supreme Court in 2022’s New York State Rifle and Pistol Association v. Bruen will foil any attempt to ban the sale of popular firearms. They may not take Trump’s rhetoric literally or seriously and expect his election won’t lead to unrest or abuses of authority. He has a well-established history of saying outrageous things, and it’s not always easy to tell which ones he means in jest.
Whatever the reason, Americans might say they’re worried about chaos in this year’s election, but they aren’t arming up like they mean it. Since gun sales have often served as a kind of chaos meter, many that’s a good sign. Perhaps we aren’t as close to the brink as it sometimes seems?
That’s it for now.
I’ll talk to you all again soon.
Thanks,
Stephen Gutowski
Founder
The Reload
