The Case Against Hunter Biden Is Unusual And Possibly Unconstitutional

When a grand jury indicted Hunter Biden last week for buying a gun in 2018 despite using crack cocaine, the legal logic was clear: You can’t own a gun if you use illegal drugs, and he clearly did both.

The Navy Reserve had discharged the president’s son four years earlier after he tested positive for cocaine, and he discussed his crack addiction in his 2021 autobiography, “Beautiful Things.” 

That gives special counsel David Weiss substantial proof that Biden lied when he signed the required ATF form pledging that he did not use illegal drugs so that he could buy a .38-caliber revolver — and that he possessed the gun illegally because of his drug use.

But the seemingly straightforward case is also very unusual. Federal prosecutors almost never file stand-alone charges against drug users who buy or possess guns. 

In the rare cases in which they do, prosecutors usually have hard evidence in the form of physical guns and drugs that were discovered in the defendant’s possession. It’s usually after a drug search or traffic stop turns up those guns and drugs.

In this case, law enforcement never apprehended Biden with drugs, or even the gun. 

“I can’t recall a single case like this,” said former U.S. Attorney for North Dakota Tim Purdon, who has both prosecuted and defended dozens of federal firearms cases. “I was an active practitioner in that space for 20 years.” 

The list of celebrities who have openly discussed possessing firearms during times that likely overlap with illicit drug use includes podcaster Joe Rogan , actor Brad Pitt , and members of hip-hop group Cypress Hill, whose first album describes possessing guns and marijuana simultaneously in nearly every song. 

In theory, the FBI could go chase any of these people down based on that information alone. In practice, federal law enforcement rarely charges these crimes at all. 

“It’s hard to find cases where they just charge someone with this,” said Dru Stevenson, a professor at South Texas College of Law Houston. “It’s almost always incident to a drug bust. That can happen because of a traffic pullover and they find drugs in the car. They do the drug arrest and they find the guy with a gun, so it’s an extra charge.”

Without such hard evidence, proving that drug abuse coincided with a gun purchase or possession can become tricky. 

“Beyond reasonable doubt is a very high standard,” Purdon said. “To prove that someone was a drug user in possession of a firearm, an ideal case would be a blood test taken within an hour of a person handling a firearm that showed the presence of a drug. Without evidence of that sort, I think a lot of prosecutors would be concerned about carrying the burden of proof beyond a reasonable doubt.”   

The Justice Department does not routinely publish prosecution data broken down by charging statute. But of the 7,373 firearms offenders sentenced in 2021, the U.S. Sentencing Commission identified only 5.3% as prohibited possessors of firearms because they were drug users. That amounts to about 390 offenders nationwide, or a little more than half a percent of the federal criminal caseload at the district level. 

“It’s incredibly unusual for this to be prosecuted, especially since he didn’t do anything wrong with the gun, other than possess it,” said Stanford Law School professor John Donohue. “And he only had the gun for a matter of days it wasn’t a long period.” 

Hallie Biden, the widow of Hunter Biden’s brother Beau, discovered the gun within a couple of weeks of the purchase and threw it in a dumpster behind a grocery store. A man later found it in the trash while looking for recyclables. 

“I don’t think there’s any doubt that the fact that he’s related to the president is harming his prospects here,” Donohue added. “Probably hundreds of thousands or millions of people have done what Biden has done, and no one has prosecuted them or thought to prosecute them.”

Even half a percent of the federal criminal caseload likely exaggerates the Justice Department’s focus on drug-using gun possessors. Prosecutors often decline these cases.

Prosecutors are most likely to pursue charges for possessing guns while using drugs when they suspect the alleged offender is involved in more serious criminal conduct. Federal prosecutors have charged suspected drug dealers and potentially violent political extremists with possessing guns and drugs at the same time, either to secure a conviction or ratchet up pressure for a plea deal, according to the Dallas Morning News . 

“When you dig into this and you try to find when this case gets charged, it looks like it gets charged as a tag-along charge to more serious cases of felon-in-possession and things like that,” Purdon said. 

Lying on ATF Form 4473, the other major charge that Biden faces, is almost never prosecuted at all, according to data made public by The Washington Post through the Freedom of Information Act. The form requires gun buyers to pledge that they can legally own firearms. 

One disqualification that applicants have to answer “yes” or “no” to is whether they are “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.”

In Delaware in fiscal year 2019, the same state and time frame of Biden’s alleged firearm offenses, the U.S. attorney didn’t prosecute a single case against someone lying on ATF Form 4473 about drug use. 

When prosecutors did pursue cases against people lying to buy guns, they were usually more serious, typically involving straw purchases.

One woman bought two pistols for her boyfriend, a felon under investigation for attempted murder at the time. Investigators recovered one of the guns after he died in a shootout with police. 

Another man bought a Ruger 10/22 in a straw purchase, then handed the rifle off to someone who used it in a home invasion. A third woman bought a pair of pistols at a pawnshop to give to her drug dealer as payment. 

Explosive Second Amendment Law 

Complicating matters further, the Biden indictment comes in the midst of a Supreme Court-mandated overhaul of Second Amendment rights. 

In last year’s landmark case New York State Rifle and Pistol Assn. v. Bruen , the conservative-dominated court held that New York could not keep qualified applicants from obtaining a concealed handgun permit by requiring them to name a specific threat to their safety. 

The majority opinion, penned by Justice Clarence Thomas, went on to contend that courts do not have to weigh states’ interest in public safety at all when assessing the constitutionality of gun restrictions. Instead, the Bruen standard only considers gun laws constitutional in cases where they fit within a tradition of gun regulation that can trace its origins to sometime between 1791, when the Bill of Rights was signed, and the end of the Civil War. 

That novel and vague standard has created a tidal wave of new constitutional challenges to long-standing gun laws, with lower courts overturning state assault weapons bans, age restrictions for handgun purchases and regulations on possessing firearms with scrubbed serial numbers. 

One of the clearest targets for Second Amendment challenges is the provision of the Gun Control Act of 1968 that banned drug users from owning guns. 

The wave of marijuana legalization since California legalized medical use in 1996 has created a situation in which many otherwise law-abiding gun owners become felons if they use cannabis, even in legal states. Major cases in several states have challenged the law barring marijuana users from possessing firearms as unconstitutional. 

The 5th U.S. Circuit Court of Appeals overturned a conviction last month on constitutional grounds against Mississippi man Patrick Daniels, who was apprehended in his vehicle with a semi-automatic rifle, a pistol and some marijuana. The 11th Circuit will hear oral arguments next month in a constitutional challenge to gun restrictions on medical marijuana patients filed by a group of plaintiffs including former Florida Agriculture Commissioner Nikki Fried. 

Winning gun rights for crack users has less of a social movement behind it, but the energy behind marijuana could have implications for Hunter Biden. 

The Supreme Court will give public signals about its evolving thinking on gun rights on Nov. 7, when it’s slated to hear USA v. Rahimi , in which the 5th Circuit overturned a decades-old federal law barring domestic abusers from possessing guns. 

With Biden expected to plead not guilty , his case may be among the many legal challenges that ultimately reshape gun legislation in America. 

There’s no guarantee that the case will go very far, however. Federal defendants almost never take their cases to trial . Last year, about 8% of them had their cases dismissed, while almost 90% pleaded guilty. 

Biden himself almost avoided indictment on the gun charges through a plea deal that fell apart. He still faces federal prosecution for alleged tax violations and the looming possibility of future legal problems tied to his business dealings overseas. That pressure may give him and his legal team an incentive to keep working toward a new plea deal.  

And special counsel Weiss also has an incentive to avoid pushing too hard on a prominent case with the potential to rewrite gun law.  

“I don’t think that the government wants to settle this question,” Purdon said. “I think they’re afraid of what the answer might be.”

Like many legal scholars, Donohue, the Stanford law professor, sees the Bruen decision as vague and impractical, making it hard to guess whether the Supreme Court will ultimately uphold, limit or overturn prohibitions on drug users possessing guns.

“The problem with the Bruen decision is it literally makes no sense in any way,” Donohue said. “I have a feeling that they may want to pull back a little bit on Bruen. But you never know with them. They seem so confused. They might just double down on Bruen and say, ‘You can’t prohibit any of this stuff.’”

Justice Thomas’ requirement in the Bruen ruling for a historical analog to uphold a gun restriction, however, could work in Biden’s favor in the unlikely event that the Supreme Court does take the case.  

“In 1791, there was no crack cocaine,” Donohue said.