The new federal gun charges against Hunter Biden set up a constitutional challenge that will pit him against his father, who has steadfastly defended the firearm regulations that his son violated. Several federal courts have deemed the federal ban on gun possession by illegal drug users inconsistent with the Second Amendment, and the president's son is likely to challenge the case against him on the same grounds.
The indictment that David Weiss, the U.S. attorney for Delaware, unveiled last Thursday also vividly illustrates the penalty that criminal defendants pay for insisting on their Sixth Amendment right to a trial by jury. And it provides a window into the wildly uneven enforcement of federal gun laws that prescribe draconian penalties for conduct that violates no one's rights.
Biden, by his own admission, was a crack cocaine user when he bought a Colt Cobra .38 Special from StarQuest Shooters, a Wilmington, Delaware, gun store, in 2018. He originally was charged with violating 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a controlled substance to receive or possess a firearm. That crime was punishable by up to 10 years in prison at the time of Biden's gun purchase, and a bill his father signed last year raised the maximum penalty to 15 years. But under an agreement that fell apart in July, Biden would have avoided prosecution on that charge if he successfully completed a two-year pretrial diversion program and permanently surrendered his Second Amendment rights.
The diversion agreement was paired with a plea deal involving two misdemeanor charges for willfully failing to pay income taxes. Under that deal, Biden would have pleaded guilty, while the Justice Department would have recommended probation. But it became clear at a July 26 hearing that Weiss disagreed with Biden's lawyers about the scope of the immunity promised by the diversion agreement. In addition to highlighting that disagreement, U.S. District Judge Maryellen Noreika raised concerns about two highly unusual aspects of the diversion agreement that seemed designed to protect Biden from the consequences of a Republican victory in next year's presidential election.
Noreika wondered why the immunity provision was included in the diversion agreement, which ostensibly was not subject to her approval, rather than the plea deal, which was. She also objected to a provision that charged her, rather than the Justice Department, with deciding whether Biden had complied with the diversion agreement, which she said raised separation-of-powers issues by requiring her to exercise a prosecutorial function. Both provisions would have been important for Biden in the event that his father lost reelection, since they would have made it harder for a Republican-controlled Justice Department to pursue additional charges against Biden, possibly including illegal lobbying as well as gun and tax offenses.
Noreika instructed Weiss and Biden's lawyers to hammer out a clearer, less legally problematic deal. When those negotiations failed, Weiss, who was appointed as a special counsel charged with investigating Biden in August, indicated that he planned to try the president's son on the tax charges in California or the District of Columbia, which he said were more appropriate venues for that case. But the gun case remained in Delaware, since that is where Biden bought the revolver, and the charges multiplied, as often happens when a defendant declines to plead guilty.
In addition to illegal possession of a firearm, Biden now faces two overlapping counts related to the gun purchase. One alleges a violation of 18 USC 922(a)(6), which applies to someone who knowingly makes a false statement in connection with a firearm transaction. Biden did that by checking "no" in response to a question on Form 4473, which is required for gun purchases from federally licensed dealers: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" That check mark was a felony punishable by up to 10 years in prison.
The other new charge against Biden involves 924(a)(1)(A), which applies to someone who "knowingly makes any false statement or representation with respect to the information" that a federally licensed dealer is required to record. That charge, which is punishable by up to five years in prison, is based on the same lie on the same form. Although the Justice Department concedes that "there is considerable overlap in the conduct covered" by this provision and the conduct covered by 18 USC 922(a)(6), that did not stop Weiss from pursuing both charges.
In short, Weiss, who originally thought Biden's gun purchase did not require prosecution, let alone a prison sentence, is now charging him with three crimes stemming from the transaction, which carry a combined maximum penalty of 25 years in prison. In the span of less than two months, Weiss went from zero to 25. Even allowing for the fact that sentences for gun crimes typically fall far short of the statutory maximum, that is a pretty striking escalation. It cannot possibly be justified by the gravity of Biden's conduct, which harmed no one. Rather, the dramatic increase in Biden's legal peril looks like retaliation for his decision to fight the gun charge.
That sort of "trial penalty" is par for the course in a criminal justice system where prosecutors wield tremendous power to coerce guilty pleas by threatening to pile on charges and/or seek stiffer punishment if a defendant has the audacity to make the government prove its case. As David McGarry noted in a Reason article last March, 98 percent of federal convictions and 95 percent of state convictions are based on guilty pleas. McGarry cited an American Bar Association (ABA) report that helps explain why defendants rarely exercise their Sixth Amendment rights.
In federal felony cases, the ABA found, the average sentence for defendants who go to trial is seven years longer than the average sentence for defendants who plead guilty. "Although a modest reduction in sentence is justified in some cases resolved through guilty pleas because a defendant accepts responsibility," the ABA said, "sentences should not be punitively inflated simply because a defendant exercised a fundamental right."
That is precisely what seems to be happening in Biden's case. Nor is the disparity between what Weiss thought was appropriate in July and what he now claims to think is appropriate the only reason to question the justice of threatening "prohibited persons" with prison for possessing firearms.
Survey data suggest that millions of gun owners are guilty of violating 18 USC 922(g)(3) because they consume arbitrarily proscribed intoxicants (mainly marijuana). Yet fewer than 150 Americans are prosecuted for that crime each year. Even when gun buyers (including people who are disqualified for other reasons, such as felony records) are caught lying on Form 4473, they are rarely prosecuted.
In FY 2017, according to a 2018 report from the Government Accountability Office, federal background checks "resulted in about 112,000 denied transactions." The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) "referred about 12,700" of those cases for "further investigation" by its field offices. Yet as of June 2018, the Justice Department had prosecuted just 12 of those cases, which represents about 0.01 percent of the blocked transactions and 0.09 percent of the cases investigated by the ATF.
Even if you include people whose misrepresentations are discovered after they buy firearms, violations of 18 USC 922(a)(6) account for a tiny fraction of all federal gun cases. From FY 2013 through FY 2017, for example, that was the lead charge in 533 cases, which represented just 1.5 percent of total federal firearm charges. By comparison, 75 percent of the cases during that period involved people who were charged with illegal gun possession because they had criminal records that barred them from owning firearms.
These numbers show that people who do what Biden did almost never face prosecution. That is largely because gun-owning drug users typically are not identified as such, but it is also because federal prosecutors do not prioritize such cases. And although Biden's original arrangement with Weiss prompted much criticism from Republicans who complained that he was benefiting from political favoritism, his current situation suggests that Weiss is keen to rebut that allegation by throwing the book at Biden.
Biden probably will not make much headway by arguing that he has been unfairly singled out for especially harsh treatment. Nor can he credibly claim that he is not guilty of the three charges in the indictment. But the constitutional argument that his lawyers have indicated they plan to pursue is much more promising.
Under the Supreme Court's ruling in the 2022 case New York State Rifle & Pistol Association v. Bruen, gun restrictions must be "consistent with this Nation's historical tradition of firearm regulation." At least two federal judges have concluded that 18 USC 922(g)(3) fails that test. Last month, the U.S. Court of Appeals for the 5th Circuit agreed with that assessment, overturning the conviction of a Mississippi man who was caught with two guns and the remains of several joints during a routine traffic stop.
Those courts rejected the Biden administration's defense of 18 USC 922(g)(3), which relied mainly on a transparently faulty analogy between the current blanket ban on gun possession by drug users and early laws aimed at people who publicly carried or fired guns while intoxicated. Although President Joe Biden says marijuana use should not be treated as a crime, he still thinks it is serious enough to justify the loss of Second Amendment rights. According to the government's lawyers, cannabis consumers and other illegal drug users are so dangerous that they cannot be trusted with firearms—so dangerous, in fact, that they deserve to be imprisoned if they flout that policy.
The president's commitment to that position pits him against his own son, whose continued freedom may depend on his ability to persuade the courts that his father is wrong about the constitutionality of a policy that arbitrarily deprives millions of Americans of the right to armed self-defense. This clash also puts conservative supporters of that right in an awkward position. As much as they might loathe Hunter Biden, Republicans who take the Second Amendment seriously may have cause to thank him for helping to dismantle restrictions that undermine the freedom it guarantees.