On Friday, Hunter Biden may have lost the greatest Hail Mary pass in history. When Cowboys quarterback Roger Staubach threw his famous winning touchdown pass to wide receiver Drew Pearson in 1975, he later explained "I closed my eyes and said a Hail Mary." For Hunter, the pass to the Supreme Court roughly 50 years later just missed in equally spectacular fashion.
Hunter and his legal team were counting on the Court striking down the federal gun law at issue in the case of United States v. Rahimi. Hunter was just convicted by a unanimous jury in Delaware for false statements on a gun form and possession of a firearm as a drug addict. He has been arguing against the position of his father's administration and adopting the same argument of the National Rifle Association (NRA) in challenging the constitutionality of the law.
The Supreme Court just voted 8-1 that the law is indeed constitutional and that a court can temporarily deprive citizens of the right to possess weapons for the protection of others. The sole dissenter was Justice Clarence Thomas.
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The case involved Zackey Rahimi, a drug dealer who was under a restraining order after a 2019 argument with his girlfriend (called C.M. in the opinion) who had a child with him. Rahimi allegedly knocked C.M. down, dragged her to a car, and then (as the C.M. fled) shot at either C.M. or a bystander. He was also accused of threatening to shoot her if she went to the cops.
The Texas trial court found that Rahimi was not only engaged in "family violence" but that additional violence was "likely to occur again in the future." Under the protective order, Rahimi's gun license was suspended for two years and he was barred from contacting C.M. for that period. Under the order, his gun rights would be suspended for either one or two years after his release date, depending on any imprisonment.
However, Rahimi was not done yet. He later violated the order by approaching C. M. and communicated with her by social media. Months later, Rahimi threatened a different woman with a gun and was charged with aggravated assault with a deadly weapon. Finally, a police officer later identified him as the suspect in a spate of at least five additional shootings.
That was not exactly a poster child for lawful gun owners and the Court failed to see the suspension of his gun rights as an unconstitutional deprivation. Since the Court first recognized the Second Amendment as an individual right in District of Columbia v. Heller, 554 U.S. 570 (2008), it has stated that this is not an absolute right. There are no truly absolute rights in the Constitution.
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The Court found the federal statutes imposing a reasonable temporary limitation on this right. Chief Justice John G. Roberts Jr. wrote that "an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment."
The key is the temporary qualification. The Court is only saying that a court can make reasonable decisions based on such a record to protect others from allegedly violent defendants.
While the majority found that such temporary limits were consistent with historical practices, Justice Thomas, the author of the Bruen decision that reinforced the protections under the Second Amendment after Heller, objected that the Court could not cite "a single historical regulation" to justify the federal law. Bruen had emphasized such historical practices in interpreting the protections under the Second Amendment.
That brings us back to Hunter. While the result in Washington was not as bad as the unanimous decision in Delaware, it may well have sealed his fate on appeal. U.S. District Judge Maryellen Noreika did not leave him much for appeal in overseeing a fair and textbook trial.
The Biden legal team had been counting on Hail Mary passes since a Special Counsel was appointed. It almost worked. Special Counsel David Weiss seemed to work hard to avoid any felony charges against the president's son.
The Justice Department not only allowed the statute of limitations to run on major crimes, but sought to finalize an obscene plea agreement with no jail time for Hunter. In the hearing to accept the plea, Judge Noreika decided to ask a couple of cursory questions of the prosecutor, particularly about a sweeping immunity provision covering any and all crimes committed by Hunter. The prosecutor admitted that he had never seen an agreement this generous for a defendant.
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The plea fell apart and the Biden team seemed unwilling to accept anything but a single throw victory. They told the prosecutor in court "just rip it up."
The Biden legal team then blundered in taking the case to trial with a jury nullification strategy. Some of us wrote that Hunter needed to plead guilty to avoid jail time. Instead, they hoped that a Delaware jury in Bidentown could never convict a Biden. They were wrong.
That left the last pass to the Supreme Court, which just seemed to land in the stadium seats. In reality, it was never a strong throw. After all, Hunter was convicted for lying on gun forms, something that the Court was never likely to excuse.
What is now left for Hunter are sentencing guidelines that strongly support jail time and a judge who has imposed such jail time in past cases.
The other group of people that may be even more upset with this ruling may be many in the media and Congress. Once again, the Court has shattered the false narrative that this is a hopelessly divided Court along ideological lines. This month the Court has continued to rule unanimously or nearly unanimously, including in cases like Rahimi in controversial constitutional claims.
Instead, the Court rendered a reasonable, balanced accommodation for public safety under the Second Amendment. It is not clear who is more disappointed: Hunter or the Court critics.
