After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden?

For criminal law practitioners, as well as for those who take constitutional gun rights seriously, the provision of federal criminal gun control that was upheld by the Supreme Court in US v. Rahimi, 18 USC § 922(g)(8) (basics here), is not really a matter of frequent concern.  As noted in this new Quick Facts publication from the US Sentencing Commission, the vast majority of federal criminal gun control prosecutions involve persons who “were convicted under 18 U.S.C. § 922(g) because of a prior felony conviction.”  Of just over 8000 persons sentenced in federal court for illegally posessing a gun in Fiscal Year 2023, well over 7000 were in violation of federal 18 USC § 922(g)(1) for having a firearm after having “been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”

Of course, just in the last few months, a couple of high profile individuals have “been convicted [of] a crime punishable by imprisonment for a term exceeding one year.”  Because both former President Donald Trump and son-of-the-current-President Hunter Biden have now both been convicted of felonies, they would be committing a new federal felony crime if they now or in the future were to “possess … any firearm or ammunition.”  (There is perhaps an irony that one of Hunter Biden’s felony convictions involves another different (suspect?) provision of 18 USC § 922(g), but he also was convicted of two other crimes that trigger the criminal gun possession prohibition of § 922(g)(1).)   So, to comply with federal statutory criminal law, Donald Trump and Hunter Biden should make sure they do not now or in the future posssess any firearm or ammunition. 

But what about their Second Amendment rights?  Notably, at least two circuit courts and a number of district courts have read the Supreme Court’s landmark Bruen opinion to lead to the conclusion that the federal criminal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offenders.  Both Donald Trump and Hunter Biden could surely make a claim that they are nonviolent, nondangerous offenders, so can they also claim they have a constitutional legal right to possess a gun regardless of federal statutory law? 

Of course, this past Friday, the Supreme Court in Rahimi explained how Second Amendment law is now supposed to work, and so Donald Trump and Hunter Biden (and their legal teams) have new guidance as to the scope and limits of their gun rights.  But, from my read of key language in Rahimi, I am still scratching my head on this important front.  Here, I believe, is much of the key operative language from the Court’s Rahimi opinion:

Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms….   From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others….

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed….

While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, we note that Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another….

Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home.  In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.”…

Section 922(g)(8) … presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others…. [O]ur Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not….  Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others….

Finally, in holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” Brief for United States 6; see Tr. of Oral Arg. 8–11. “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law….

[W]e conclude only this: 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.

I do not believe Donald Trump or Hunter Biden “poses a clear threat of physical violence to another,” and § 922(g)(1) notably serves to permanently disarm anyone with a felony conviction.  Further, the federal government has, since Bruen, generally argued for the constitutionality of 922(g)(1) based on the notion that only “responsible” individuals have Second Amendment rights.  The Rahimi court directly and expressly rejected that notion.  But still, as we saw before in Second Amendment cases like Heller and McDonald, the Court in the Rahimi seems to still embrace dicta that can be read to suggest that the very broad criminal prohibition set forth in 18 USC § 922(g)(1) is still constitutional.  

So, to repeat the question in the title of this post: After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden?