Hunter Biden's Gun Conviction Does Not Resolve a Constitutional Dispute That Pits Him Against His Father

The president's son, who faces up to 25 years in prison for conduct that violated no one's rights, can still challenge his prosecution on Second Amendment grounds.

A federal jury in Delaware today found Hunter Biden guilty of three felonies based on his purchase of a revolver from a Wilmington gun shop in October 2018. That outcome is not surprising, since Biden had publicly admitted that he was a regular crack cocaine user around the time of the transaction. But Biden can still challenge the verdict by arguing that his prosecution violated the Second Amendment—a claim that pits him against his own father.

The central charge against the president's son was a violation of 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess a firearm. The two other charges, also felonies, involved Biden's misrepresentation of himself as a legal gun buyer. Biden faces combined maximum penalties of up to 25 years in prison, although his actual sentence is apt to be much shorter, assuming he is incarcerated at all.

In his 2021 memoir Beautiful Things, Biden described a crack addiction that extended from the spring of 2018 into 2019, featuring several "bullshit attempt[s] to get well." His defense hinged on the improbable and legally iffy suggestion that he bought and possessed the gun during a brief window when he was sober and did not view himself as an illegal drug user or addict.

To prove that Biden violated Section 922(g)(3), his lawyers argued, "the government must show" that he was using crack "on the day of his firearm purchase." They said that point was also crucial in establishing that Biden had lied when he answered "no" to a question on the form 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 argument contradicted both the Justice Department's reading of the statutes and relevant case law. Under federal regulations, the 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," it 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 the 2009 case United States v. Burchard, for example, the U.S. Court of Appeals for the 6th Circuit upheld a jury instruction that said "the Defendant must have been engaged in the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm." The instruction added that "the law does not require that the Defendant used the controlled substance at the precise time he possessed the firearm." Rather, "an inference that Defendant was an unlawful user of a controlled substance may be drawn from evidence of a pattern of use or pattern of possession of a controlled substance that reasonably covers the time a firearm was possessed."

In Biden's case, prosecutors supported that inference with passages from his memoir, testimony of people close to him, and text messages indicating that he was using crack shortly before and shortly after he bought the revolver. They also cited cocaine residue on the leather pouch in which Biden kept the gun. Although Biden's lawyers emphasized that the government had not presented eyewitness testimony about his crack use during the 11 days that he possessed the revolver, the jurors evidently thought that was not necessary to establish Biden's guilt beyond a reasonable doubt.

As a matter of statutory law, this always seemed like an open-and-shut case. But as a matter of constitutional law, the validity of Biden's prosecution is less clear.

In a motion to dismiss the gun charges, Biden's lawyers argued that Section 922(g)(3) is inconsistent with the Second Amendment. Last year in United States v. Daniels, they noted, the U.S. Court of Appeals for the 5th Circuit overturned a marijuana user's conviction under that law, rejecting the government's argument that his prosecution was "consistent with this Nation's historical tradition of firearm regulation"—the test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. Several other federal courts likewise have ruled that prosecuting cannabis consumers for illegal gun possession failed the Bruen test.

U.S. District Judge Maryellen Noreika, who presided over Biden's case, rejected his pretrial 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 was 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 irresponsible that their possession of guns would pose an intolerable threat to public safety, the argument is more plausible in Biden's case.

However you view Biden's suitability as a gun owner back then, his brief possession of a revolver did not injure or threaten anyone. Defense attorney Abbe Lowell emphasized that Biden never loaded the gun or removed it from the lockbox in which he kept it. The only plausible public safety threat, Lowell said, arose from an "incredibly stupid" decision by Hallie Biden, the widow of Biden's brother Beau. Hallie, whom Hunter had started dating in 2016, testified that she removed the gun from his pickup truck and tossed it into a trash bin behind a grocery store because she was worried that he might harm himself.

When Hallie returned, the gun was gone. Lowell noted that Hunter, whom the prosecution portrayed as a public menace, was "the very person" who urged Hallie to contact the police about the missing gun, which brought his firearm possession to light.

Given these facts, one might reasonably question whether Biden's conduct merits a prison sentence even without considering the Second Amendment implications. Special Counsel David Weiss initially charged Biden with just one count of illegal gun possession, and he was willing to drop even that charge once Biden successfully completed a pretrial diversion program. After that deal collapsed under Noreika's scrutiny last July, Weiss filed the two additional charges related to Biden's misrepresentation on the purchase form, both of which are based on the same underlying conduct. That decision increased Biden's potential prison sentence from zero to 25 years—a striking example of the prosecutorial power that has made the right to trial by jury mostly theoretical.

Republicans complained that Weiss' original deal with Biden, which also included a plea agreement that recommended a probation sentence for two misdemeanor tax charges, reflected political favoritism. After that episode, Weiss, who now is also pursuing a separate tax case against Biden, seemed determined to refute such criticism by throwing the book at him.

Critics may laugh at the contention that Biden is now the victim of "selective and vindictive" prosecution. But even if Biden escapes serious time, the fact that he 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, which also created a new potential charge in cases like this). But the main reason that gun-owning drug users are rarely prosecuted is that the government generally does not know who they are.

By chronicling his crack addiction in a best-selling memoir, Biden exposed himself to these charges once his gun ownership was revealed. 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, Biden probably will get off lightly. But he 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 gun rights. Yet the Biden administration has steadfastly defended Section 922(g)(3), arguing that cannabis consumers, even in states that have legalized marijuana, are ipso facto so dangerous and untrustworthy that they are excluded from "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment.

The president has ruled out a pardon in this case, which would be politically disastrous. But he surely does not believe that his son deserves the sort of stiff punishment that Congress has authorized. And if that is true of Hunter Biden, it is also true of many other, less privileged drug users who are unlucky enough to be prosecuted for trying to exercise their Second Amendment rights.