The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


"Could Hunter Biden Be the Next Poster Child for Second Amendment Rights?"


An interesting article in Politico (Betsy Woodruff Swan):

The president's son is the target of a Justice Department investigation scrutinizing his purchase of a gun in 2018 — a time when he has said he was regularly using crack cocaine. Federal law bans drug users from owning guns.

But the constitutionality of that law — like many other provisions restricting gun ownership — is newly in question after a precedent-rocking decision the Supreme Court handed down almost a year ago.

His lawyers have already told Justice Department officials that, if their client is charged with the gun crime, they will challenge the law under the Second Amendment, according to a person familiar with the private discussions granted anonymity because they are not authorized to speak publicly. That could turn a case that is already fraught with political consequences into a high-profile showdown over the right to bear arms.

The dispute would come as the White House fights to tighten gun laws. And it could put conservative gun-rights enthusiasts, who typically criticize the Biden family, in unusual alignment with the president's son.

The federal statute (18 U.S.C. § 922(g)(3)) bans gun possession by anyone who "is an unlawful user of or addicted to any controlled substance." (It's a separate provision from the one that bans gun possession by convicted felons, which would include people who had been convicted of feloniously possessing a controlled substance.) The Politico story notes the dispute among lower courts whether this particular provision is constitutional, and links to relevant cases.