Hunter Biden's Lawyers Say the Gun Ban He Violated Is Unconstitutional, Widely Flouted, and Rarely Enforced

The president's son is seeking dismissal of three felony charges based on his illegal 2018 firearm purchase.

Hunter Biden's lawyers this week asked a federal judge in Delaware to dismiss the three gun charges against him, all of which are based on his purchase of a revolver in 2018, when he was a crack cocaine user. They claim the president's son is a victim of "selective and vindictive prosecution" driven by political pressure on Special Counsel David Weiss from Republican members of Congress, which they argue also violates the separation of powers. But in making that case, the motion notes that the federal ban on gun possession by illegal drug users is constitutionally dubious, widely flouted, and rarely enforced.

Biden's gun purchase violated 18 USC 922(g)(3), which makes it a felony for "an unlawful user" of "any controlled substance" to receive or possess a firearm. And since Biden falsely denied illegal drug use on the form he filled out when he bought the gun, he also is charged with violating 18 USC 922(a)(6), which applies to someone who knowingly makes a false statement in connection with a firearm transaction, and 924(a)(1)(A), which redundantly 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.

Biden's motion notes that Section 922(g)(3) "was recently found unconstitutional by the Fifth Circuit." In August, the appeals court overturned the Section 922(g)(3) conviction of Patrick Darnell Daniels Jr., who was caught with two guns and the remains of a few joints during an April 2022 traffic stop in Hancock County, Mississippi. Applying the Second Amendment test established by the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen, the 5th Circuit concluded that Daniels' conviction was "inconsistent with our 'history and tradition' of gun regulation."

Although Daniels was lucky that the 5th Circuit agreed with his Second Amendment argument, he was extremely unlucky to need the court's intervention in the first place. As Biden's lawyers note, Section 922(g)(3) "is very broad (unconstitutionally so), covering millions (if not tens of millions) of gun owners who use substances controlled under federal law, including marijuana, even if those drugs are legal at the state level." Yet the Justice Department "almost never" prosecutes people under that provision.

According to the National Survey on Drug Use and Health, about 70 million Americans used illegal drugs (mainly marijuana) in 2022, the year that Daniels was arrested and prosecuted. Based on surveys indicating that roughly one-third of American adults own guns, we can surmise that something like 20 million people violated Section 922(g)(3) that year. Unlike Daniels, nearly all of them did so with impunity.

"Of the 132,464 criminal prosecutions under federal gun statutes" from FY 2008 through FY 2017, the motion notes, "only 1.8% were brought under Section 922(g)(3)." That amounted to an average of 120 prosecutions a year, accounting for a minuscule percentage of potential defendants.

The Justice Department "almost never brings charges under that statute absent some aggravating factor, such as the use of the firearm in a violent crime, none of which are present here," Biden's lawyers say. But as Daniels' case shows, there are exceptions.

Daniels was stopped for driving without a license plate. One of the officers happened to be a Drug Enforcement Administration (DEA) agent, who "approached the vehicle and recognized the smell of marihuana." A search of the car discovered "several marihuana cigarette butts in the ashtray," along with a 9mm pistol and a semi-automatic rifle. Daniels was arrested and taken to a local DEA office. Although the DEA never conducted a drug test or otherwise investigated whether Daniels was under the influence of marijuana at the time of the stop, he admitted to smoking pot on a regular basis, something like 14 times a month.

That admission was enough to charge Daniels with violating Section 922(g)(3), which was punishable by up to 10 years in prison at the time of his arrest. A jury convicted Daniels in July 2022, and he was sentenced to nearly four years in prison, plus three years of supervised release. The felony conviction also meant he was permanently barred from owning guns under another provision of the same statute.

Biden, like Daniels, was unlucky that his gun possession and drug use both came to official attention. A couple of weeks after he bought the revolver, Hallie Biden, his brother's widow and his girlfriend at the time, removed it from his pickup truck and tossed it into a trash bin behind a grocery store. When she returned, the gun was gone, which prompted a police investigation. As Biden's lawyers put it, "The gun was discarded and then discovered and investigated by local police, who decided no charges were warranted."

The second element of Biden's main federal firearm felony was established by his public admission that he was regularly using crack in 2018. At the time, he (perhaps hyperbolically) recalled in his 2021 memoir Beautiful Things, he was "up twenty-four hours a day, smoking every fifteen minutes, seven days a week."

Still, Biden's lawyers say, charging him under Section 922(g)(3) was not consistent with the Justice Department's policy of prioritizing gun cases involving violent offenders. "Mr. Biden bought a small firearm that he owned for a mere 11 days, never loaded, and never fired," they write. "Mr. Biden has no history of violence and has never posed a risk to public safety."

Those factors help explain why Weiss initially filed just one gun charge against Biden and agreed to drop it if Biden successfully completed a two-year pretrial diversion program. Weiss also reportedly viewed Biden's drug problem as a mitigating factor (which seems paradoxical, since Biden's gun crime hinged on his drug use). In any event, the diversion agreement, which was paired with a plea agreement that promised probation in exchange for Biden's admission of two tax misdemeanors, fell apart last July under scrutiny by a federal judge.

After negotiations aimed at producing a new agreement reached an impasse, Weiss decided to charge Biden with two more gun felonies. He also obtained a separate indictment that lists nine tax crimes—six misdemeanors and three felonies. The combined maximum penalties are 25 years in the gun case and 17 years in the tax case, for a total of 42 years.

Biden's lawyers portray that escalation, which vividly illustrates the broad discretion that gives prosecutors enormous power to coerce guilty pleas, as evidence that Weiss has been improperly influenced by criticism from the president's enemies. Whether or not you buy that argument, any sort of prison term for Biden's gun offenses, which did not injure or threaten anyone, would be plainly unjust, especially since it would be based on a law that arbitrarily strips Americans of their constitutional rights.

Although Biden's lawyers understandably do not mention it, the president is totally on board with the gun policy that could send his son to prison. The Biden administration is actively defending Section 922(g)(3) against challenges like Daniels', based on the same specious arguments that the 5th Circuit and two district courts have rejected. And last year, the president signed a bill that increased the maximum penalty for violating that provision while creating yet another potential felony charge for illegal drug users who dare to exercise their Second Amendment rights.