The Gutowski Files Ep 33: Hunter Biden's 2A Defense and Hawaiian Knives

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Well, all right again, welcome back to the Gatowski Files WORK_OF_ART, starring our very own Stephen Katowski PERSON. He is the founder, owner, editor-in-chief, assistant janitor, and regional manager over at the reload.com. The reload.com. And if you haven't done so already, do me a favor.Do Stephen PERSON a favor and just hop over there to the reload.com. There's a link in the notes of the audio version. You can click on that. It's always been there. It'll always be there. Go consider getting a membership.Stephen PERSON relies on your membership dues to fund his important work. Stephen PERSON, how are you, sir?

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I'm doing pretty well. How are you?

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I'm not too bad. I'm a little frazzled today. It's been a long day. It's been a long couple days, but it's going to be fine. So I beg Stephen PERSON to please carry this episode for me because I'm too, my brain hurts too much.

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To do my best. So real quick, before we start, I'm not going to make it to NRA this year for a bunch of reasons.

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But you are. Make sure you look up John. I think John Neal PERSON and stuff are all there. Maybe Thomas Yoxle will go say hi to them for me while you're there and maybe get some. I will. John PERSON's definitely

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going to be there because they were putting him in the ads for the meeting.

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I don't know if you saw that on Instagram ORG.

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So he's like a star, star of the show. That's right.

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He's teaching. And if you go into the NRA ORG meeting, you know, look him up. Go to one of his classes. I think he's teaching some evidence-based pistol stuff, but I'm honestly not sure. But go look, John PERSON up. Tell him, tell him, Mike says hi, if you see him.Mike Willavers PERSON says high. He's the guy on the Active Self-Rection ORG podcast, in case he forgot. So, Stephen, this week we're talking about a piece over at the reload. It is entitled Analysis Piece by, hold on, I'm going to move this because my camera is in the way, by Stephen Kutowski PERSON. And the headline is, Hunter Biden Gun Biden gun trial looks set for election season. This is a member exclusive, but you can hear a little bit about it here on the Act of SelfProtection podcast. So we mentioned this before that there might be some sort of novel Second Amendment LAW angle for Hunter Biden PERSON. And I honestly don't remember what it was. So can you refresh my memory, please? Yeah.

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So Hunter, for those who've forgotten, he was charged with three different federal gun crimes related to a revolver that he bought several years ago. He bought this revolver. Hunter Biden PERSON has a very messy personal life, as I think many people are well aware of at this point. But I think his girlfriend at the time, who was his brother's widow, was concerned about him having this gun at this important time. And she took it and threw it away in the trash behind a grocery store, which thensomebody digging through the dumpster found and turned over to, surprisingly, turned over to the police. And then, actually, there was the Secret Service got involved perhaps inappropriately at one point. But this all resulted in a special prosecutor being appointed to look into this situation plus his tax issues that Hunter PERSON had had. And they had at one point had come to a sort of plea agreement or non-prosecution agreement. I guess it's better phrased as where he was going to accept, you know, responsibility for some of these things, but he wasn't going to get jail time.You know, it was a non-prosecution agreement. He was going to accept some punishment in exchange for not getting the full punishment that he might, if they went to trial any laws, right? But that blew up, as we might remember, a little while back, the whole thing, once I got in front of a judge it kind of fell apart and so now he's being prosecuted currently for the tax stuff but also what we're concernedabout here the the gun charges and the issue he has is that when that he bought that gun he later wrote a book that talked about his life during that period and went on a whole media tour, if you recall. And the problem is that in that book, he claimed to be using crack, quote, 15 minutes, every 15 minutes. So, yeah, that's not the best thing to do if you're under investigation, I think, for potentially committing gun crimes.Because one of the prohibitions that we have in federal law for gun possession is you cannot be addicted to drugs, to elicit drugs. You can't be a user of hard drugs. And oftentimes that's hard to establish, I think, for prosecution, whether you're addicted to or continually using, which is where the whole book thing comes in. He kind of openly said it that he was addicted and continually usingduring this period that he bought this gun, which means that not only did he have the gun, the possession becomes illegal, but also that he bought this gun, which means that not only did he have the gun, the possession becomes illegal, but also that he lied on the background check because the background check specifically asks you, are you an user of illicit drugs or addicted to illicit drugs?So that's what he's being charged. These three crimes he's being charged with all relate to the same basic action where he went and bought this gun from a, from a license dealer. And so he had a setback this week, or you could say two setbacks in court and one development that was positive, I think, to his case. Because what's happened since then is he's made the argument that the Second Amendment actually protects him, and this law that he's being charged under is unconstitutional, which if he made this argument maybe five years ago, it wouldn't be super likely to go anywhere.But since Bruin, a lot of Second Amendment LAW jurisprudence at the federal court levels, the lower levels of the federal court, have been in flux, and there have been questions raised about this particular prohibition, really almost all the prohibitions, essentially. And so it's a little bit more of a legitimate defense now. Like, it has a chance of working. But we could start with the negative stuff first. One, he had appealed this decision to, he was asking an appeals court, the federal appeals court, the third circuit, because this all happened in Delaware GPE.And that's the third circuit. And he asked an appeals court to basically throw out his charges to stop the trial based on this non-prosecution agreement that they had gotten that blew up. And the appeals court said no. You have to go through this trial. You might have some defenses that work during the trial, but you can't avoid the trial because of this defunct non-prosecution agreement that you had with the prosecutors that never got fully certified. And then the other bad thing that happened for him is the motion that his lawyers preparedto make that Second Amendment LAW defense was also rejected by the lower court judge in his case, although it was rejected because they tried it as what's called a facial challenge. So a lot of the like gun rights groups when they file challenges that we talk about on the show, they tend to do facial challenges of like new gun laws. And the problem with the facial challenge is it's a higher bar. It's harder to get because essentially you're arguing that there's no possible application of this law that would be constitutional.And so the judge said that's rejected that argument. However, and also, like, there was sort of a lot of criticism, I think, of Hunter PERSON's lawyers. And, like, it didn't seem like the judges were all that, um, convinced by anything they were trying to do.

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Uh, they were trying to get that plea agreement in place. And that's when everything blew up as, you know, it's actual courtroom drama, which is rare.

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Oh, yeah. Oh, yeah. So, go on.

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So there, yeah, there was a lot of, a lot of, like, these filings didn't seem like they're very

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impressive to the judges involved here.

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At least that's the impression I got from the outside as someone who's not a lawyer,

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but obviously follows a lot of these things. Because, you know, there's suggestions. The courts kind of make suggestions of, like, you could try some of these arguments in a different way and they might work, but the way you're trying to do it isn't working. And that was true of the Second Amendment LAW claim. The judge basically said, you know, this is poorly argued somewhere between a facial challenge and an as applied challenge. I'm going to let yourefile this with an as applied challenge. That's the other way you can challenge the constitutionality of a law. You can say either facially the whole law is just completely bad. It won't work in any circumstance. Or the easier route for a criminal defendant isusually to say the way this law is being applied to me in my circumstance is unconstitutional. And so the bottom line for these two developments is that his second amendment defense is still viable, but he's probably going to have to make it and it's probably going to have to be next month. So this trial, the US v. Biden Biden is going to start in June a couple months before the presidential election that his father is running in.And he's going to be on the opposite side of his father's Department of Justice ORG who's prosecuting him. Now, you know, it's a special prosecutor. So it's supposed to, it's designed to try and mitigate some of the political influence that goes into these things. But, but yeah, still, obviously the optics of that are pretty, going to be pretty dramatic, especially with Donald Trump PERSON on the other side facing his prosecutions and his trials. So he won't be alone in it.It'll Hunter Biden, you know, Joe Biden's PERSON son will also be going through a trial.

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Yeah, I remember hearing from an assistant U.S. attorney one time that the way defense works, this is during a trial, by the way, not pretrial, during a trial is they will first try to attack the case that you've brought. And so if there's any holes in your case or if there's, you know, what's the word I'm looking for? I'm having an off day, I promise.A coerce, you know, statement or something like that. Or if the defendant, you know, did ask for an attorney and you kept pressing and then they confess or something like that, if they can't attack the case, they'll attack the agent or the agency that's bringing into the case. Well, this agent didn't do A, B, and C, blah, blah, blah. And then if that doesn't work, attack the law. Now, you can't go as far as jury nullification, but say, this law is unjust, ladies and gentlemen of the jury, and, you know, no one shouldbe convicted of this. And that's something that I heard. In fact, one of the defense attorneys on the other side of a case of mine actually got slapped down by a judge for doing that during closing arguments. Anyway, there's another story that I just want to touch on briefly before we part ways.

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Well, this one's not totally done yet.

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Oh, so sorry. Go ahead.

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Yes. So I mentioned the Second Amendment LAW part of this. Hunter Biden's PERSON argument of this facial challenge that he tried to do didn't work, but he still can do an as-applied challenge, right? And there was another case. It might be the one you were about to go to here.So apologies. But there was another case, it might be the one you were about to go to here, but, uh, so apologies. But,

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but there is a,

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another case where a different criminal defendant out in California had, uh, argued that this same basic federal law, the prohibited person's law, um, was unconstitutional as applied to him because the Second Amendment LAW protects his his gun rights. And this was a little bit of a different charge. It's a similar idea, but different charge. This was a felon in possession charge. This guy was, and I'm sure I'mgoing to get the pronunciation wrong here, but is Duarte out in California. This is a case that just came in from the Ninth Circuit. Three-judge panel was a two-one ruling in favor of the defendant saying essentially that because his convictions for the crimes that he committed outside of the possessing a gun part, because those weren't at the founding considered to be something that rose to the level of lifetime ban on firearm ownership, that this guy's convictions were unconstitutional,that this law, as applied to him, is unconstitutional. Because he's, now this guy, and the reason that this matters for Hunter PERSON, because he's not facing a found in possession charge, right? He's facing charges related to him buying this gun while being a drug user or lying on the form while being a drug user. But one of the charges that this guy in California was convicted of previously was a drug possession charge.And actually it seems there was a possession with intent to distribute charge. And it was cocaine. So it wasn't even marijuana or some lesser or at least society views marijuana is less. The law doesn't necessarily make a distinction. But some judges have, I think in cases you've seen some judges say, you know, marijuana possession is maybe a little bit less serious than hard drug possession. But regardless, this is a pretty close parallel for Hunter PERSON's case.And so it actually does provide that was sort of the good side for him. He got these two bad rulings in his direct case. And to be fair, this was not in the Third Circuit ORG. This is the Ninth Circuit ORG. So it's not precedential to this Hunter PERSON's case directly. Like it's not going to have a direct legal impact on what the lower court can rule.But these things tend to have a lot of influence across the country, uh, when you start seeing rulings like this. And his lawyers can absolutely point to this ninth circuit ruling when they go to make their case. And I would be very surprised if they didn't do that because, um, like I said, it's a, it's a pretty big boost for Hunter PERSON's second amendment defense. Uh, you haven't actually seen many courts do this., it's a pretty big boost for Hunter's Second Amendment LAW defense. You haven't actually seen many courts do this.And it's only the second appeals court, I believe, to rule that some of these felon and possession charges are not constitutional because of the underlying nature of the felonies that were involved. Are we done now? I don't want to move on i still

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look we're done oh the other thing i should say one quick thing on this because one thing people

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will ask me and maybe you wonder this too i don't i don't know but uh i've seen people because

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one of the charges here is not related to the possession of the gun or buying the gun it's lying on

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the form about being a drug user.

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And so you might think, well, that wouldn't change. He can still be charged with that even if the, you know,

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him being a drug user and possessing a gun is protected by the Second Amendment LAW. But actually, if the underlying crime is, is wiped out, then lying about something on a form related to that, my understanding would also be gone.

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Almost certainly, yeah. So the other article over at the reload involves Hawaii

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and butterfly knives of all things.

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And I'm sure people will wonder, well, how is that related to, you know, my firearms rights? Hawaii is a sort of very, like the least libertarian place I can think of in the country. And as much as there's very much a lot of sort of regulation out there. We have one of our very own Soleil Roche, he lives out there, who's out there just killing it with legal challenges and working with some organizations to try to get things done, second amendment wise. But this involves butterfly knives, which I call and feel free to use this at home done, second amendment wise, but this involves butterfly knives,which I call, and feel free to use this at home folks, fidget stabbers. I never understood the point of a butterfly knife why it takes forever to get it. I mean,you can be relatively quick, but by the time you get your butterfly knife out and unfolded and put back together, I've stabbed you 37 times. So I don't see why on earth you would use it for self-defense.

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But anyway, well, when you're when you're like doing your dance number as your gang goes to fight the other gang. And you're, you have to, you know, have something to do with your hands while you're singing.

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And you can't use both hands because you're, you're snapping with your other hand.

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And you're juggling the butterfly knife.

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Yep.

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Yeah.

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That's how gangs work in real life.

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Or if you're a Michael Jackson in the 80s,

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you tie your left hands together and each get a knife and somehow fight while dancing.

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Yes.

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This is getting really off the rails, Stephen PERSON.

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What is going on in Hawaii? Please tell our good listeners and viewers. Yeah, but seriously, you know, this stuff with the way this, this happens a lot in the stricter states like Hawaiior California where they go after these knives or guns or whatever that show up in movies and they're sort of menacing things and in real life, you know, one,I don't think criminal cares about these sorts of bands and sort of one of the underlying critiques of a lot of these kinds of laws. But they end up hurting people who care about this stuff for like martial arts related reasons oftentimes, you know, or sort of traditional weapon. I don't know that butterfly knives, what the history is there, but regardless, yeah, what ended up happening here wasHawaii has a bunch of bands on all kinds of weapons and not just like carry bands or whatever, but just you can't own them. If you go to prison, right, if you buy a switchblade somewhere, whatever, or, you know, gravity knives was a big thing for a long time in these deep blue states where and gravity live is kind of a not a very clear term as sort of whether you can flick the knife open with your hand.And obviously that's going to depend a lot on what your forearm looks like, what kind of if it's a big burly guy, guy is going to be able to flick a knife open a lot easier than someone else and so but of course inevitably these things get uh the the police departments or ATF ORG or you know you look at ATF's like pistol brace regulation they're using some giant some guy with a giant forearm as like well can this wrap around your forearm well it can't wrap around Arnold Schwarzenegger's PERSON forearm.So it must not be useful for that. Anyway, the point is these things were banned, possession, manufacturer, carry. And that became an issue after, really after Heller, because Heller, if you remember the standard there, was common use for law for purpose. So if there's a lot of a weapon out there that's owned by normal peoplefor normal things, non-criminal purposes, then in theory, at least, it can't be banned. So Alan Beck PERSON, who's a litigator who does almost all of the gun rights litigation in or second amendment litigation in this case in Hawaii has been going after these sorts of bans there was um there's a 2016case the Supreme court about stun guns uh where the court said yeah the halter decision applies to modern weaponry it doesn't have to be guns from the 1700s or weapons from the 1700s. It could be a modern weapon as long as it's in common use. It's protected. And so he's been going around and getting most of those remaining stun gun ban struck down. And he's also focused on a lot of these unique laws that California and Hawaii have banning these sorts of weapons. And the reason this happened, so Hawaii suddenly, actually without like, it's kind of funny because they seem to have gone beyond what the Second Amendment advocates in Hawaii even wanted in this case,where they passed this law that legalized butterfly knives, both possession and open carry. Now there's sort of a, you can get to this in a minute. There's kind of a problem with open carry as far as butterfly knives go. But concealed carry is still not allowed.But also basically open carry for any bladed weapon. So like Claymore PRODUCT's, not the bombs, the giant swords.

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Pikes,

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you know what? Technically,

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all that stuff now is legal. Simitar. Simitars legal in Hawaii, open carry? Yeah.

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As far as I can tell, any bladed weapon, anything is not a gun, really, uh, more or less is now,you know, look, read the law for yourself, consult your, your lawyer if you're in Hawaii. This is not legal advice, but it seems to legalize open carry of most weapons that aren't firearms. And that this happened because Allen Beck had a lawsuit going, which he actually had a significant victory in against the butterfly knife ban that Hawaii had.So they are basically saying, well, we lost this case. We don't necessarily know that we want to gamble continuing to fight this case in court because we could get a bad ruling against those. They got a bad ruling and they could get another one at the next level of the appeals. And so instead they said, well, we're going to pass this law that legalizes butterfly knives and the open carry of most bladed weapons. So most, if not all, bladed weapons.So, you know, that's kind of where they've come down. Now, Beck PERSON says, going back to that caveat earlier, right, if you've ever used a butterfly knife or whatever, you know that, like, it's difficult to, it's hard to imagine a way to open carry one. Right.

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By the nature of the knife.

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I think you could clip, probably clip on one of the two halves of the handle

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and clip that to your, to your, maybe you could devise probably clip on one of the two halves of the handle and clip that to your belt, to your,

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maybe you could devise some sort of new mechanism for that, but I don't think one really exists right now. There's no, you know, obviously Butterfly knives don't come with clips on them like a pocket knife would, but because of the way that they work, right? They fold open and they flip around and stuff and I don't know. But because in their closed form, you wouldn't necessarily know there's a knife in there. So, you know, that's still perhaps a live issue in the case, keep the case moving forward. Conceal carry is still banned.Open carry may be impractical with a butterfly knife. So we'll have to see what the courts do with this. This is not the first time you've seen a state do something like this. Before Bruin happened, there was another Supreme Court case that dealt with New York's GPE gun laws. That was also brought by the same gun rights group in New York GPE, New York State Rifle and Pistol Association.And that one made it, the Supreme Court accepted it. And then New York GPE decided that they would, instead of, they'd fought for this law, they defended the law all the way up to the point where the Supreme Court accepted it, similar to this Hawaii situation. The Hawaii fought and defended this law until they lost. And then, or in New York's case, until the Supreme Court accepted the case, and they kindof figured they were going to lose. So they changed the law. And they, that can have an effect called mooting, moots the, I don't know if mooting is right

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way, but it moots the lawsuit and makes it, um, no longer relevant because they, the complaint

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is, uh, no longer active because the law has been changed to address the issues that the plaintiffs had with it.

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Right.

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And so, you know, there's still, again, Beck PERSON says he's going to continue to push for this. Maybe not every issue has been resolved by this law change, but that is kind of the purpose, the point of this is avoid further litigation.

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I kind of want to move to Hawaii, become a resident and run for office so I can pass a bill, a law in Hawaii. Stephen already knows it's going to be silly. A law in Hawaii, you can conceal carry a butterfly knife only if you're wearing fingerless gloves and sunglasses that flip up in the front and hang out in the mall parking lot.

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All right. That is our time. I've got to go deal with my day, such as it is. Steve PERSON and I can't thank you enough. As always, folks, go over to the reload.com.

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Consider getting a membership. I would appreciate it. Steve PERSON would appreciate it. Steve PERSON had anything to add for you partway, sir?

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You know, I do want to get one of the, not a real butterfly knife because I'm pretty sure I would hurt myself, but like a training one, one like fake one just because you still do all this little things

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yeah it's good for by motor skill or you know seeing how well you can manipulate something listen

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if you're going to carry a knife for defense i don't recommend carrying a knife for defense

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nice is knife's like your third line of defense oh yeah um keep people away from me if they're trying

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to kill me yeah i recommend a fixed blade.

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That's all. That's it. A decent fixed blade knife.

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I have a fidget knife already, though. Oh, yeah. Switch blade, which I also don't think would be useful at all for any sort of defense,

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but it's good for opening packages. Not to get too far afield, but I don't know. I mean, I think the beauty of a fixed blade is it's always open. You don't, and nothing, there's nothing to fail. There's no mechanism to fail. There's no hinge to wear out.

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You're talking about like a rambo knife?

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Not necessarily, but yeah, that qualifies as a fixed blade.

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But anything that doesn't need fidgeting.

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I don't want you fidgeting with your eyes, folks.

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If you're relying on them to save your life, please and thank you. All right. But if you're having fun, just trying to have some fun.

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Steven, you have the last word. Absolutely.