The president’s son was indicted Thursday on charges stemming from a gun purchase in 2018, including a charge for allegedly illegally possessing the firearm, which could prove to be an uphill battle for prosecutors due to the 2022 high court decision in Bruen v. New York Rifle & Pistol Association, which has been used to scrutinize many federal firearm regulations.
Biden’s son was charged with violating 18 U.S. Code § 922(g)(3), which bars firearm ownership by anyone who is an “unlawful user of or addicted to any controlled substance” and is punishable by a fine or up to 10 years in prison if convicted.
That same statute has been challenged in lower courts after the 6-3 Bruen ruling, which saw the six-member Republican-appointed majority on the high court declare gun regulations must be “consistent with the Nation’s historical tradition of firearm regulation” and has resulted in at least a dozen state and federal gun control laws being partially or completely held unconstitutional.
Lower court rulings haven’t gone so far as to overturn the statute in question, only that charges brought under it should be thrown out. In a relevant case before the 5th U.S. Circuit Court of Appeals, which covers Texas, Mississippi, and Louisiana, the judges voided charges for marijuana users who possessed firearms.
“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,” the 5th Circuit wrote in U.S. v. Daniels on Aug. 9.
Biden’s attorney Abbe Lowell signaled his plans to challenge the charges on the basis of the Bruen opinion, writing in a statement Thursday that they believe the 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.”
The Supreme Court has so far not granted any cases that concern the federal statute Biden is accused of violating, but the justices will hear the case Rahimi v. U.S. on Nov. 7, which deals with another provision of that statute banning people from owning a gun if they have a domestic abuse restraining order against them.
Brandon Beck, an assistant professor at Texas Tech School of Law and former federal public defender, told the Washington Examiner he would “file a motion to dismiss the indictments” if he was representing the younger Biden.
Beck said he would argue the third count is “unconstitutional under the Second Amendment in light of Bruen because there’s no historical tradition of disarming people that are users of a controlled substance. And then second, they should argue [the statute] is unconstitutional under the Fifth Amendment because it’s vague as to its definition of drug user. It doesn’t define ‘drug user.'”
The charges against Hunter Biden concern a purchase he made for a Colt Cobra 38SPL handgun in 2018 when his father had already ended his vice presidency and was not yet running for the 2020 presidency.
Between Oct. 12 and 23 of 2018, the younger Biden was in possession of the gun, prosecutors allege. The president’s son has acknowledged his past drug addiction in public interviews and in his memoir. Hallie Biden, the widow of Hunter Biden’s deceased brother, Beau, said she threw the gun into the trash near a Delaware high school after discovering it because she was “scared” for his life and feared he would “use it.”
The first two charges against Hunter Biden are similar, one that he lied about his drug use to obtain a weapon illegally and that he falsely claimed he was not addicted to any stimulant, narcotic drug, or any other controlled substance on a federal firearm Form 4473.
If defense lawyers for the younger Biden succeeded at voiding the third count, which simply bans gun ownership or transport by anyone “addicted to a controlled substance,” Beck said the question is how that would apply to counts one and two.
“Because possessing a firearm unlawfully is quite different from lying to the government or lying on a form,” he said. “So the question that becomes more interesting is, if you lie about something that turns out to be unconstitutional, is it still a crime to lie about it?”
Legal experts say prosecutors rarely, if ever, bring charges under the federal code Hunter Biden is accused of violating. In fiscal 2019, when Hunter Biden purchased his gun, federal prosecutors received 478 referrals for lying on Form 4473 but filed only 298 cases, the Washington Post reported in June last year, citing data from the U.S. attorneys’ case management system.
Jake Charles, an associate law professor at Duke Firearms Law, told the Washington Examiner he is more reserved about how Bruen would affect the charges over the Form 4473 violations because of a similar appeals court decision, noting the 7th Circuit has held that listing false street addresses is a “material representation” that violates federal code, according to a June 21 decision in a case known as U.S. v. Ladd.
“The way that Bruen might affect the case, I think it affects the third count and, maybe even through the third count, the first and second, but I’m not sure that affects the resolution of the first two counts independently,” Charles said.
Following the ruling in Bruen, the president released a statement saying it “contradicts both common sense and the Constitution, and should deeply trouble us all,” urging states to enact “common sense” gun laws, many of which have come under legal scrutiny in Democratic-controlled states.
And while conservative legal advocates lauded Justice Clarence Thomas’s ruling in Bruen and have called for fewer restrictions on Second Amendment rights, major groups, including Gun Owners of America and the National Rifle Association, aren’t coming to Hunter Biden’s defense.
“GOA opposes all gun control, but 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,” said GOA senior vice president Erich Pratt.