Hunter Biden's Trial Highlights a Widely Flouted, Haphazardly Enforced, and Constitutionally Dubious Gun Law

The president's son, who is charged with crimes that violated no one's rights, theoretically faces up to 25 years in prison.

A federal jury in Delaware today began hearing the gun case against Hunter Biden, which alleges that he committed three crimes when he bought a revolver in October 2018. The central charge against the president's son is a violation of 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to possess a firearm. The two other charges, also felonies, involve Biden's alleged misrepresentation of himself as a legal gun buyer.

As a matter of statutory law, the case against Biden is straightforward. He has publicly admitted that he was regularly smoking crack cocaine around the time he bought the gun, and prosecutors say investigators found cocaine residue on the leather pouch in which he had kept it. As a matter of constitutional law, the viability of the case is less clear, although a pretrial ruling delayed consideration of that issue until after Biden is convicted, assuming that he is.

A conviction seems almost certain. During a five-month sojourn in Los Angeles beginning in the spring of 2018, Biden recalls in his 2021 book Beautiful Things, he was "up twenty-four hours a day, smoking every fifteen minutes, seven days a week." The implication that Biden was awake and high on crack for weeks at a time seems like the sort of hyperbole that you might expect in a best-selling addiction memoir. But that public admission certainly does not help his case.

In the fall of 2018, Biden writes, "I came back east" after "my most recent relapse in California, with the hope of getting clean through a new therapy and reconciling with Hallie," his brother Beau's widow, whom he had started dating in 2016. But he adds that "neither happened." He tried ketamine therapy in Massachusetts, but it was "disastrous," and he "backslid." He would "stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return."

Biden describes that experience as "merely another bullshit attempt to get well on my part." He "headed back toward Delaware" but "took an exit at New Haven." During "the next three or four weeks," he "lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport." He "hardly went anywhere now, except to buy."

Here is how Biden describes that period: "It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I'd kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen."

It was around this time that Biden bought a Colt Cobra 38SPL revolver from a Wilmington gun store. That happened on October 12, 2018. Eleven days later, Hallie Biden, worried that Hunter might harm himself, removed the gun 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. She is expected to testify about that bizarre episode.

Biden's lawyers "could argue that it was possible he was not abusing drugs at the precise moment he filled out the form" required for gun purchases from federally licensed dealers, The New York Times suggests. Among other things, that form asks, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" Biden checked "no," which accounts for two of the charges against him.

According to the prosecution, it does not matter whether Biden was high at "the precise moment" when he bought the gun. Under federal regulations, the Justice Department notes, a buyer violates Section 922(g)(3) if he has used an illegal drug "recently enough to indicate that the individual is actively engaged in such conduct."

Federal courts have said "a temporal nexus is required between the drug use and the firearm possession," the Justice Department says. "Courts now examine the 'pattern and recency' of the defendant's drug use in determining if there is a temporal nexus between the possession of the firearm and drug use." But they "do not require contemporaneous use." In other words, briefly abstaining from crack prior to the gun purchase would not let Biden off the hook.

The defense's argument to the contrary relies partly on United States v. Daniels, a 2023 decision in which the U.S. Court of Appeals for the 5th Circuit overturned a cannabis consumer's conviction under Section 922(g)(3). "The government presented no evidence that Daniels was intoxicated at the time he was found with a gun," the appeals court noted. But the context of that observation was the question of whether Daniels' prosecution was consistent with the Second Amendment. While "our history and tradition may support some limits on an intoxicated person's right to carry a weapon," the 5th Circuit concluded, "it does not justify disarming a sober citizen based exclusively on his past drug usage." The court was not addressing the question of whether Daniels' conduct satisfied the elements of Section 922(g)(3).

Biden's lawyers nevertheless argue that "the government must show" Biden was using a controlled substance "on the day of his firearm purchase," which they say is also crucial in deciding whether he is guilty of lying on the purchase form. "The issue here is Mr. Biden's understanding of the question, which asks in the present tense if he 'is' a user or addict," defense attorney Abbe Lowell wrote in a pretrial brief. "The terms 'user' or 'addict' are not defined on the form and were not explained to him. Someone like Mr. Biden who had just completed an 11-day rehabilitation program and lived with a sober companion after that, could surely believe he was not a present tense user or addict."

In his opening statement today, Lowell reiterated the claim that Biden did not "knowingly" give a false answer to the question of whether he was a drug user or addict if he did not view himself as such at that moment. Lowell also appealed to the jury's sympathy, saying "literally millions" of Americans have experienced problems similar to Biden's struggle with addiction.

Given the way that federal courts have interpreted "unlawful user," that first argument seems iffy, especially since Biden has admitted that he was still using crack during this period and described his habit as extending into 2019. The second argument is worse than legally irrelevant: Under Section 922(g)(3), Biden's status as an addict does not exonerate him; it condemns him.

Lowell also emphasized that Biden never loaded the gun or took it out of its lockbox during the 11 days he possessed it. It was Hallie Biden, he noted, who removed the gun and recklessly dropped it in a trash can.

Those details would matter if convicting someone of violating Section 922(g)(3) hinged on showing that he behaved in a way that posed a threat to others. But that is not an element of the offense. The law assumes that every illegal drug user who possesses a gun is ipso facto a public menace, regardless of how he actually behaves.

That assumption, several federal courts have ruled in cases involving marijuana users, is inconsistent with the Second Amendment. In seeking dismissal of the gun charges, Biden's lawyers cited the 5th Circuit's decision in Daniels to support their contention that Section 922(g)(3) is unconstitutional. That argument pits Biden against his own father, whose administration has steadfastly defended the law.

U.S. District Judge Maryellen Noreika, who is presiding over Biden's case, rejected his motion last month, saying he had failed to show that Section 922(g)(3) is unconstitutional on its face. But she said Biden could still challenge the law as applied to him if he is convicted.

That could prove to be a challenge for Biden. Unlike the typical cannabis consumer, he concedes that his drug use was excessive and out of control. While it is unreasonable to assume that all drug users are so untrustworthy and dangerous that their possession of guns would pose an intolerable threat to public safety, the argument is more plausible in Biden's case. At the same time, as Lowell noted, Biden's brief ownership of a revolver did not actually harm or endanger anyone.

Biden's lawyers also argue, contrary to Republican complaints that he has benefited from political favoritism, that he has been singled out for especially harsh treatment. That claim did not seem very plausible when it looked like Biden would avoid any risk of jail time under agreements resolving the tax and gun charges against him. But after those controversial agreements collapsed under Noreika's scrutiny last July, Special Counsel David Weiss may have been determined to refute Republican criticism by coming down hard on Biden. "Nobody is above the law," prosecutor Derek Hines told jurors today. "Not even Hunter Biden."

While Biden originally was charged only with illegal gun possession, the indictment that Weiss unveiled in September included the two additional felonies based on his denial of drug use, both of which involve the same underlying conduct. That increased the combined maximum penalties from 10 to 25 years in a case where Weiss initially was willing to drop the possession charge after Biden completed a pretrial diversion program.

It is still possible that Biden, if convicted, will avoid incarceration for the firearm offenses. The Times notes that "nonviolent first-time offenders who have not been accused of using the weapon in another crime rarely receive serious prison time for the charges." Yet the fact that Biden was prosecuted at all for violating Section 922(g)(3) marks his case as highly unusual.

Judging from survey data on drug use and gun ownership, something like 20 million Americans are committing that felony right now. The Justice Department prosecutes only a minuscule percentage of those potential defendants. That is partly because such cases are not a high priority, which tells you something about the logic of treating this offense as a felony that is currently punishable by up to 15 years in prison (thanks to legislation that Biden's father signed in 2022). But the main reason that gun-owning drug users are rarely prosecuted is that the government generally does not know who they are.

The Biden exception to that rule is the result of two factors. If he had not publicly disclosed his drug use or if Hallie Biden had not publicly revealed his gun possession, there would have been no basis to charge him. But even at that point, federal prosecutors did not have to pursue the case, let alone treat a single gun purchase as three felonies. Here is where Weiss' eagerness to show that Biden would not get a pass simply because he is the president's son may have played a role.

Is that fair? Compared to the defendant in Daniels, who received a sentence of nearly four years after he was caught with guns and the remains of a few joints during a traffic stop, the president's son probably will get off lightly. But Biden already has fared worse than the millions of drug users who own guns without attracting the government's attention. The haphazard, wildly uneven enforcement of this widely flouted statute, which criminalizes conduct that violates no one's rights, would be troubling even if it did not arbitrarily strip people of their Second Amendment rights.