The result [of the Bruen decision], quite simply, has been legal chaos. The history of gun regulation is not so neat and clean as to yield easy historical parallels to the questions at issue today; American legal doctrine has developed considerably since the colonial and Reconstruction eras. As a result, unless the government can draw a bright line between history and the present day, its gun control measures are in mortal legal peril.
The federal court rulings after Bruen have been dramatic. In United States v. Rahimi, the Fifth Circuit reversed the federal conviction of a man who possessed a weapon while subject to a domestic violence restraining order. In April, a federal district judge struck down the gun possession charges of a marijuana user. In June, the Court of Appeals for the Third Circuit, sitting en banc, held that federal law violated the Second Amendment rights of a nonviolent criminal to purchase a firearm.
And now Hunter Biden, who bought a gun as a nonviolent, unlawful drug user, is charged under the same federal statute at issue in each of the cases above. Arguably, Biden’s best defense to that charge is to join a host of other criminal defendants by challenging that count under Bruen’s text-and-history test. He just might win — and if he does, he will contribute to the dismantling of a key element of federal gun regulations.
My own view is that Thomas’s text-and-history test is deeply misguided. To take the Rahimi case as an example, American legal history is frankly dismal when it comes to protecting women from domestic violence. Should this longstanding historical failure have the power to determine modern legal doctrine? Similarly, prohibitions on drug use and possession largely date to the 20th century. Modern gun jurisprudence should not restore our nation’s laws to a deeply flawed, premodern phase.
Earlier this year, the Supreme Court granted the federal government’s motion to hear the Rahimi case, and oral arguments are set for Nov. 7. The court has an opportunity to right the wrongs of the worst aspects of its holding in Bruen. But unless it does, there may be few greater beneficiaries of a conservative legal doctrine than Hunter Biden himself. His ordinary gun charge landed in a time of legal chaos over gun regulation, and unless the Supreme Court says otherwise, expect that chaos to win.
— David French in The Most Interesting Element of the Hunter Biden Indictment
