President Joe Biden’s son Hunter Biden was indicted Thursday on charges stemming from a firearm purchase in 2018, including a charge for allegedly illegally possessing the gun—which may have difficulty holding up in court, thanks to a 2022 Supreme Court ruling that made it substantially harder to regulate firearms.
Biden was charged with violating 18 U.S. Code § 922(g)(3), which makes it illegal for anyone who is an “unlawful user of or addicted to any controlled substance” to possess or transport a firearm, which is punishable by a fine or up to 10 years in prison if convicted.
The statute has frequently been challenged in court in the wake of the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which declared laws that regulate guns have to be “consistent with the Nation’s historical tradition of firearm regulation” and has so far resulted in at least a dozen state and federal gun control laws being partially or fully invalidated.
Several legal challenges to indictments and convictions under § 922(g)(3) have been successful, with rulings in district courts in Texas and Oklahoma and at the 5th Circuit Court of Appeals overturning charges for marijuana users who possessed firearms, because the courts found the statute is unconstitutional.
Court rulings—which so far have not resulted in the statute being overturned, just charges brought under it being thrown out—have cited the Bruen decision directly, with the 5th Circuit writing, “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.”
Biden’s attorneys have suggested they intend to use the Bruen decision and the subsequent rulings on the statute to defend the president’s son, with the New York Times reporting in May his lawyers told prosecutors any charges against Biden “would likely be ruled moot” thanks to the Supreme Court’s decision.
In a statement after Biden’s indictment on Thursday, his attorney Abbe Lowell said the legal team “believe[s] these charges are barred by … the recent rulings by several federal courts that this statute is unconstitutional, and the facts that he did not violate that law, and we plan to demonstrate all of that in court.”
What We Don’t Know
What the Supreme Court will do. The court has so far not received any cases that concern the code Biden violated and prohibitions on drug users owning firearms directly, but the court will hear a case in its upcoming term that deals with another provision of that statute, which bans people from owning firearms who have domestic abuse restraining orders against them. That case has the possibility to further expand gun rights and when it’s permissible for people to possess firearms, which could make it easier for the charge against Biden to be thrown out. The Supreme Court is scheduled to hear the domestic abusers case on November 7, and a ruling will come at some point before the court’s term ends in June 2024.
What To Watch For
Biden has been charged with three felony counts in total, with charges also brought related to him allegedly making false statements when applying for the firearm by claiming he was not a drug user. If convicted on all counts, he faces up to 25 years in prison and fines of up to $750,000. It’s also possible that more charges could be brought against Biden in the future, with a spokesperson for special counsel David Weiss confirming Thursday the investigation against Biden remains ongoing. The president’s son has previously pleaded not guilty to two misdemeanor tax charges—each punishable by up to one year in prison—with legal analysts noting to NBC News Thursday that it’s unlikely prosecutors would drop those charges in the wake of his indictment on the gun charges, and that more serious tax charges could be brought instead.
Gun rights groups have not come to Biden’s defense in the wake of the charges against him, even as they oppose the regulations he’s been indicted under. Gun Owners of America Senior Vice President Erich Pratt said Thursday that while the group “opposes all gun control … so long as this President continues to use every tool at his disposal to harass and criminalize guns, gun owners and gun dealers, his son should be receiving the same treatment and scrutiny as all of us.” A spokesperson for the National Rifle Association (NRA) similarly said in a statement to Politico, “Laws should be applied equally against all criminals.”
President Joe Biden strongly opposed the Bruen ruling when it came out, saying in a statement the decision—which could now help his son in court—“contradicts both common sense and the Constitution, and should deeply trouble us all.” The president urged states to “enact and enforce commonsense laws to make their citizens and communities safer from gun violence,” noting courts in the past have upheld regulations on “who may purchase or possess weapons, the types of weapons they may use, and the places they may carry those weapons.”
The charges brought against Hunter Biden concern a purchase he made of a .38 handgun in 2018—when his father had already left the vice presidency and was not yet running for president—which prosecutors allege he possessed from October 12 through October 23 while using drugs. Biden has previously publicly acknowledged his struggle with drug addiction, and the Times notes Halle Biden—his brother Beau’s widow, whom Hunter was in a relationship with at the time—said she threw the firearm in a dumpster after discovering it out of concern Hunter would use it to take his own life. The indictment was widely expected after prosecutors said they were planning to bring gun charges against Biden, following a failed plea deal over his misdemeanor tax charges. Biden was initially slated to plead guilty to those misdemeanor charges and avoid the felony gun charge, instead agreeing to a diversion agreement on that charge in which Biden admitted his drug use and agreed to remain drug-free for two years. The deal fell apart as Biden went to court, however, as the two sides disagreed on an immunity clause to shield Biden from future charges. Prosecutors have been investigating Biden since 2018, with the investigation initially focused on his overseas business dealing before narrowing to the tax and gun charges, and Weiss was appointed as a special counsel to oversee the investigation in August.