His lawyers have already told Justice Department officials that if their client is charged with a gun crime, they will challenge the law under the Second Amendment, according to a person familiar with the private discussions who was granted anonymity because they are not authorized to speak publicly. That could turn a case already fraught with political fallout 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 often criticize the Biden family, in an unusual alignment with the president’s son.
Federal prosecutors are expected to wrap up their investigation into Hunter Biden soon. David Weiss, the U.S. attorney for Delaware who was appointed by former President Donald Trump, is leading the investigation. Attorney General Merrick Garland said in May that Weiss is “capable of making the decisions he deems appropriate” and will not face political pressure. It has been widely reported that Weiss is looking into potential tax crimes related to unreported income, as well as Hunter Biden’s purchase of a gun in October 2018.
When he bought the gun, Biden filled out a federal form in which he allegedly declared that he was not “an illegal user of or addicted to” any “controlled substance.” POLITICO reported in 2021. But according to Biden’s 2021 memoir, he was frequently using crack cocaine at the time.
“I was smoking crack every 15 minutes,” He wrote.
An attorney for Hunter Biden declined to comment for this article. A White House spokesman also declined to comment, citing the fact that the president’s son is a private citizen and that the Justice Department’s investigation is ongoing.
The Gun Control Act of 1968 prohibits illegal drug users from having firearms. The Bureau of Alcohol, Tobacco and Firearms says this ban applies to people who have admitted to using illegal drugs in the 12 months before buying a gun. Violators can receive up to 15 years in prison.
But the provision, long considered an unassailable gun restriction, now faces challenges. Last June, the Supreme Court overturned decades of lower court case law on the Second Amendment. In New York State Rifle and Pistol Association v. Bruenthe court’s six-judge conservative majority ruled that contemporary gun restrictions must be consistent with those of the founding era.
This new constitutional test presents a massive opening for people working to loosen gun restrictions, as gun laws in America’s founding era were, in some ways, extremely permissive . The president, for his part, called the ruling deeply troubling and said it “contradicts both common sense and the Constitution.”
From the bridge, most courts have still upheld the law barring drug users from owning guns, according to Jeff Welty, a professor at the University of North Carolina School of Government who follows gun cases closely. But several have spoken out against it.
“Most is not everybody,” Welty said. “And given how shaky the law is in this area, I think anyone charged with a violation of this statute would seriously consider raising the Second Amendment as a defense.”
Just a week later the bridge was released, a federal district judge in Utah ruled that banning drug users from owning guns unconstitutional due to its vagueness. Judge Jill Parrish noted that the statute itself does not define the word “user” and does not say how the timing of drug use affects his right to own guns. Parrish’s ruling, which the government has appealed, was based on the Fifth Amendment, not the Second, so it did not cite the Supreme Court. the bridge decision But the bridge it only strengthens the challenges to prohibition by drug users.
Just ask Judge Patrick Wyrick, an Oklahoma district judge ruled in February that the government could not use the statute to prosecute a defendant who was caught with a gun and had marijuana in his car. In an opinion that depended a lot the bridge, Wyrick wrote that banning marijuana users from owning guns “is inconsistent with the Nation’s historic tradition of firearms regulation.” He rejected the government’s attempts to defend the statute’s constitutionality, including the government’s citations to 19th-century laws that restricted people from using firearms while intoxicated.
And in Texas in April, a district judge also ruled against the constitutionality of the law That case involved charges against a woman who had marijuana and psilocybin, a psychedelic, in her home. Judge Kathleen Cardone concluded that the ban was inconsistent with the Second Amendment and America’s early history of gun regulation. The Justice Department has appealed the Oklahoma and Texas cases.
Other judges disagree. In another Texas case, Judge Alan Albright launched a Second Amendment challenge to the statute. Albright pointed this out the bridge said the Second Amendment only protects the gun rights of law-abiding citizens.
And in Mississippi, Judge Louis Guirola Jr. rejected a defendant’s effort to have his conviction under the statute thrown out. “[A]”Similar statutes intended to disarm persons deemed a risk to society, whether criminals or alcoholics, were familiar to the American legal tradition,” Guirola wrote. The defendant has appealed.
Meanwhile, another challenge to the drug ban is pending close to home for Hunter Biden. In Pennsylvania, defendant Erik Harris was charged under the statute, and was also charged with lying on the federal form when he bought his gun (a separate crime that carries a maximum five-year prison term). Harris pleaded guilty but reserved the right to appeal the constitutionality of the charges. His appeal comes before the 3rd Circuit Court of Appeals, a key court for Hunter Biden because it also oversees Delaware.
The appellate panel in the Harris case appears to be waiting to rule until the 3rd Circuit decides another important Second Amendment case: Range v. Attorney Generala lawsuit challenging the law that prohibits felons from owning guns.
Second Amendment advocates have not reached a consensus on whether to support gun rights for people who use hard drugs, according to Joseph Greenlee, director of constitutional studies at the Policy Coalition of Firearms in favor of the Second Amendment. Greenlee, whose group argued for the plaintiff Range v. Attorney Generalsaid his group believes that people who use marijuana should not be barred from buying guns.
“We oppose marijuana-based firearm bans because we have seen enough evidence provided by the government to determine that it is insufficient to justify such a ban,” he told POLITICO. “As for other substance-based bans, we believe the government should be required to demonstrate that users of that substance are particularly dangerous.”
Greenlee added that his organization has not yet taken a position on whether or not the Constitution allows the government to ban people who use hard drugs from owning guns.
“If the government didn’t provide enough evidence to justify a substance-based ban, I wouldn’t say anything is out of the question,” he added.
Aidan Johnston, the director of federal affairs for Gun Owners of America, said his group opposes banning drug users from owning guns.
“Whatever merit you might think about banning controlled substance users from buying guns, if we don’t trust people to buy guns, why do we trust them in society?” he said
Others keep the subject at a distance. That includes Larry Keane, who heads the gun industry trade association the National Shooting Sports Foundation. His group has filed amicus briefs on a variety of Second Amendment cases. But not when it comes to hard drugs.
“We’re not working to change the law, not at all,” he said. “It’s not on our radar at all.”
Given the conflicting rulings of lower courts, the Supreme Court may someday have to rule on the statute’s constitutionality, and it’s not obvious how the court’s conservative majority would view the issue. Jacob Charles, a professor at Pepperdine’s Caruso School of Law who studies gun laws, said Justice Samuel Alito could be particularly ambivalent.
“I could see it going either way,” Charles said, “obviously pro-gun rights, but also pro-strong law enforcement.”
Andrew Willinger, the head of the Duke Center for Firearms Law, said he would be surprised to see the statute as a whole.
“I personally doubt that this ban will fall completely,” he said.
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