Is Hunter Biden’s gun case a test for the Second Amendment?

A Supreme Court decision expanding gun rights might have set a precent to protect him. But the charges he’s facing are rarely brought, raising questions about the case’s survival, legal experts tell Alex Woodward

Monday 18 September 2023 15:05 BST

Following a five-year federal investigation, a grand jury has indicted President Joe Biden’s son Hunter Biden on three charges connected to a gun purchase in 2018, a time period during which the president’s son has admitted to using drugs.

Federal law prohibits people who use drugs from buying firearms, but questions surrounding the constitutionality of that law could throw the case into jeopardy following a landmark US Supreme Court decision that opened a wave of litigation under the court’s expansive Second Amendment lens.

That’s if the case survives the political maelstrom targeting the Biden family, with congressional Republicans eager to prosecute the president’s son and impeach his father in parallel probes separate from a US Department of Justice special counsel investigation facing GOP pressure.

That partisan scrutiny comes as the leading candidate for the 2024 Republican nomination for president faces four sprawling criminal trials of his own, including charges for serious crimes allegedly committed while serving as 45th president. Republican officials and campaigns are eager to draw a false equivalence and dominate airtime with investigations surrounding the younger Biden instead.

Ironically, a Supreme Court decision celebrated by Republicans last year may have set a precedent that could protect Hunter Biden from prosecution.

The Gun Control Act of 1968 prohibits people who use drugs from possessing firearms, a ban that applies to people who have admitted to using illegal drugs within 12 months before buying a gun, according to the US Bureau of Alcohol, Tobacco and Firearms. Violating that provision could land an offender with a 15-year prison sentence.

But the Supreme Court’s decision in New York State Rifle & Pistol Association v Bruen – decided by the court’s six conservative justices – argues that such restrictions be historically consistent with the Second Amendment. As Justice Clarence Thomas wrote, “the government must demonstrate that the regulation is consistent with the Nation’s historical tradition.”

The decision created an absurdly high new burden to test the constitutionality of restrictions and other safety measures to combat the proliferation of high-powered firearms and keep them out of the hands of people who could be a danger to themselves or others in the American era marked by daily mass shootings and surging rates of gun violence, analysts and advocates have argued. President Biden has said the decision “contradicts both common sense and the Constitution.”

Within a year after that decision, more than a dozen state and federal gun laws have been challenged, with 30 per cent of civil cases and nearly 4 per cent of criminal cases citing the Bruen decision in challenges that have invalidated gun control measures, according to research in Duke Law Journal.

This year, federal judges in several cases have ruled that banning someone who uses drugs from owning a firearm is “inconsistent with the Nation’s historical tradition of firearm regulation.”

“In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage,” Ronald Reagan-appointed US District Judge Jerry Smith wrote for a federal appeal courts panel in August. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”

Hunter Biden is charged with illegally owning a gun as a drug user, and with allegedly lying on a form when he bought the firearm. If convicted, he could face up to 25 years in prison, though it is highly unlikely he would face such a sentence.

Jacob Charles, a professor at Pepperdine University’s Caruso School of Law and a constitutional law scholar focusing on the Second Amendment, said Mr Biden’s attorneys likely have a viable Second Amendment case.

It might be more difficult to challenge federal law against lying on a firearms form, which is not directly tied to Second Amendment rights, “so it’s possible that an appeals court or the Supreme Court would agree with the defense on both of the questions, and say it’s unconstitutional, and since it’s unconstitutional, you also can’t be punished for lying about the other category,” Mr Charles told The Independent.

Essentially: if one count is on unconstitutional grounds, there’s a chance the other counts wouldn’t stand up either.

“It’s not always the case that the higher profile the defendant, the more likely you’re going to get Supreme Court review,” he said. “Sometimes it seems to happen lately. But there are other cases that are farther along in the process that are challenging this same law, that if the court really wanted to answer this question, it wouldn’t have to use the Hunter Biden vehicle to do it.”

Mr Charles says the case has underscored the “disruptive effects of the Supreme Court’s decision in Bruen” and the chaotic new landscape for the nation’s myriad gun laws, which now have an apparent historical analogy regardless of the urgency for such laws in the first place.

This year, the Supreme Court will hear oral arguments in a major Second Amendment test that further magnifies the chasm between the new historical test and current realities, when justices will hear a case involving a man who possessed firearms and allegedly repeatedly shot at people while subject to a domestic violence restraining order.

It is also unclear what evidence prosecutors are reviewing to determine that Hunter Biden was using drugs at the time; those details are publicised in his memoir, in which he describes his struggle with abuse and his relapse in 2018, the year he bought the gun.

Mr Biden’s attorney Abbe Lowell believes the case will be tossed out altogether.

“The only change that has occurred between when they investigated [this alleged crime] and today is that the law changed,” he told ABC’s Good Morning America on 15 September. “But the law didn’t change in favour of the prosecution. The law changed against it.”

‘I’ve never heard of this charge. Never’

Mr Lowell and others have also questioned the timing of the case, parallel to growing threats of impeachment from far-right members of Congress against President Biden and adjacent investigations from House Republicans seeking criminal prosecutions against the president and his family.

“The US Attorney’s Office has known about this for years,” Mr Lowell said. “What changed? Not the facts, not the law, but all the politics that have now come into play.”

The younger Biden was prepared to plead guilty to charges stemming from the firearms purchase as well as separate tax-related misdemeanours earlier this year, though a plea agreement appeared to fall apart under scrutiny from a federal judge.

Justice Department special counsel David Weiss, who as US Attorney for Delaware has been investigating Hunter Biden for roughly five years, said he would seek a grand jury indictment in the case by the end of September. Mr Weiss was appointed by Mr Trump and initially requested by congressional Republicans to lead a special counsel probe.

Following the collapse of that plea deal, Mr Lowell stressed to CBS Face the Nation that Mr Weiss is “a Republican US attorney appointed by a Republican president and attorney general who had career prosecutors working this case for five years looking at every transaction” in which Hunter Biden was involved.

“If anything changes from his conclusion,” he added, “the question should be asked, what infected the process that was not the facts in the law?”

Outside of the constitutional scrutiny in Mr Biden’s case is the unusual stand-alone charge for lying on a form, which is typically charged in connection with a more serious underlying crime.

The Brady Handgun Violence Prevention Act of 1993 – supported by then-Senator Joe Biden as the chair of the Senate Judiciary Committee – made a federal form for firearms purchases a key part of a package of anti-crime legislation.

According to prosecutors, Hunter Biden lied on the form when he was asked whether he is an “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.”

But the chance of being prosecuted for lying on that form is exceedingly rare among the millions of background checks performed each year.

Within the fiscal year that Mr Biden bought the gun and filled out that paperwork, federal prosecutors received 478 referrals for charges – and filed cases in roughly half of them.

Mr Biden likely did receive so-called “special treatment” from federal prosecutors, as Republican officials have claimed. But it was in the opposite direction. His prosecution appears especially more severe than that facing a typical defendant.

“Can anyone tell me how many people have been federally indicted for purchasing a gun while dealing with substance abuse issues?” asked Keisha Lance Bottoms, a former senior adviser to President Biden. “I don’t know the answer, but in my over 29 years as an attorney, I have never heard of it.”

According to former Justice Department inspector general Michael Bromwich, these kinds of charges simply do not happen.

“I’ve been involved in law enforcement both as a prosecutor and a defense lawyer for 40 years. I’ve never heard of this charge being brought. Never,” according to Mr Bromwich, who served as Justice Department inspector general from 1995 to 1999 and previously served as a federal prosecutor in New York. He is currently a senior counsel at Steptoe & Johnson LLP.

“I think it’s extremely unusual to bring, if not unprecedented to bring, this set of charges,” he told The Independent.

“These charges were brought as a result of the unrelenting political pressure brought by Republicans in Congress to bring a heavy hand down on Hunter Biden as a way of trying to get to Joe Biden, and I think the prosecutor, Mr Weiss … has succumbed to political pressure,” he said.

A plea agreement like the one reached this summer “is much more in keeping with what an ordinary prosecutor would do,” according to Mr Bromwich.

Should Mr Weiss seek a plea arrangement like the one prosecutors sought earlier this year, his office is “going to invite criticism from the very Republicans who will put the pressure on him right now who now feel great that there are these very serious charges against Hunter Biden,” he told The Independent.

“Given all the forces at play, all the political pressure exerted from the Republican members of Congress, it’s very hard to predict where this is going to go, and how.”

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