A federal jury in Delaware begins today a gun case against Hunter Biden that accuses him of three crimes stemming from the purchase of a revolver in October 2018. Chapter 18, United States Code, 922(g)(3), which makes possession of a firearm by an “unlawful user” or a “controlled substance” a felony. The other two charges, also felonies, involve Biden allegedly lying about being a legal gun purchaser.
From a statutory law perspective, the case against Biden is simple. He publicly admitted that he regularly smoked crack cocaine when buying guns, and prosecutors said investigators found cocaine residue on the leather bag in which he stored the gun. The viability of the case as a constitutional matter is unclear, although pretrial rulings defer consideration of the issue until after Biden is convicted (assuming he is).
Conviction seems almost certain. Biden recalled in his 2021 book that he spent five months in Los Angeles beginning in the spring of 2018 beautiful things, he “gets up 24 hours a day, 7 days a week, smoking every 15 minutes.” The suggestion that Biden stayed sober and high for weeks on end seems a bit exaggerated, as you’d expect from a best-selling drug addiction memoir. But a public admission would do nothing to help his case.
In the fall of 2018, Biden wrote, “I returned East” in 2016, “after my latest relapse in California, where I hoped to recover from my addiction with new treatments and reconcile with my brother Beau’s widow, Harry, whom he had begun dating.” But he added that “nothing happened”. He tried ketamine therapy in Massachusetts, but the effects were “catastrophic” and he “regressed.” He would “stay clean for a week, leave the center to meet a contact I found in Rhode Island, smoke cigarettes, and then return.”
Biden described the experience as “just another bullshit thing I did to get a good grade.” He “returned to Delaware” but “exited at New Haven.” For “the next three or four weeks,” he “lived in a series of low-budget, low-expectations motels up and down Interstate 95 between New Haven and Bridgeport.” He “now had nothing but Hardly went anywhere except shopping”.
Here’s how Biden described that period: “I was with a crack pipe on a Super 8 and didn’t know what the fuck was wrong. All my energy was focused on doing drugs and arranging to buy them — feeding the beast. I resumed my Los Angeles sleeping habits: now few would mistake me for a so-called respectable citizen.
Around this time, Biden purchased a Colt Cobra 38SPL revolver from a gun store in Wilmington. This incident occurred on October 12, 2018. When she returned, the gun was missing, prompting police to investigate. She is expected to testify about the bizarre incident.
Biden’s lawyers “may argue that he may not have been abusing drugs” when he filled out the forms required to purchase a gun from a federally licensed dealer, New York Times suggestion. Among other things, the form asks: “Have you illegally used, or been addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance?” Biden checked “no,” explaining Two charges were brought against him.
Claiming that Biden was emotionally disturbed at the “precise moment” when he purchased the gun is not enough to acquit him of these charges or related gun possession counts. The Justice Department noted that under federal regulations, a buyer violates Section 922(g)(3) if he or she has “recent use of illegal drugs sufficient to indicate that the person is actively engaging in such conduct.”
The Justice Department said federal courts have said “there needs to be a temporal connection between drug use and gun possession.” “Courts now examine the ‘pattern and recency’ of a defendant’s drug use to determine whether there is a temporal link between gun possession and drug use.” But they “do not need to be used concurrently.” In other words, giving up crack briefly before buying a gun won’t get Biden off the hook.
“The issue here is Mr. Biden’s understanding of the question, which asks in the present tense whether he ‘is’ a drug addict or an addict,” defense attorney Abbey Lowell wrote in a pretrial brief. “The terms ‘user’ or ‘addict’ were not defined on the form, nor were they explained to him. People like Mr. Biden, who had just completed an 11-day recovery program and had since lived with sober companions, One would certainly believe that one is not a present tense user or an addict.
In his opening statement today, Lowell reiterated that Biden would not have “knowingly” given the wrong answer to the question of whether he was a drug user or an addict if he didn’t consider himself a drug user or an addict at the time. Lowell also called on the jury to be sympathetic, saying “literally millions” of Americans have experienced issues similar to Biden’s battle with addiction.
The first argument seems shaky given the way federal courts have interpreted “illegal user”, especially since Biden acknowledged that he was still using crack during this period and said his habit would continue into 2019. The argument is worse than legal irrelevance: Biden’s status as a drug addict does not exonerate him under Section 922(g)(3); it condemns him.
Lowell also emphasized that Biden never loaded the gun or took it out of the lock box in the 11 days he owned it. He pointed out that it was Halle Biden who took out the gun and recklessly threw it in the trash.
These details are important if a person’s conviction for violating section 922(g)(3) depends on proving that the person acted in a manner that posed a threat to others. But this is not an element of the crime. The law presumes that every illegal drug user who owns a gun is himself a public threat, regardless of his actual behavior.
Several federal courts have ruled in cases involving marijuana users that this presumption is inconsistent with the Second Amendment. In seeking to dismiss the gun charges, Biden’s lawyers cited one such ruling, a 2023 decision by the U.S. Court of Appeals for the Fifth Circuit that struck down Section 922(g)(3) of the Marijuana Consumers Act. conviction to support their argument that the provision was unconstitutional. The argument pits Biden against his own father, whose administration has staunchly defended the law.
U.S. District Judge Maryellen Noreika, who is presiding over Biden’s case, denied his motion last month, saying he failed to prove that Section 922(g)(3) was unconstitutional on its face. But she said Biden could still challenge the laws that apply to him if he is convicted.
That could be a challenge for Biden. Unlike the typical cannabis consumer, he admits to being overly high and out of control. Although such an assumption is unreasonable all The argument that drug addicts are so untrustworthy and dangerous that their possession of guns poses an intolerable threat to public safety is more plausible in Biden’s case. At the same time, as Lowell points out, Biden’s brief possession of the revolver didn’t actually harm or endanger anyone.
Biden’s lawyers also argue that contrary to Republican complaints that he benefited from political favoritism, he was treated particularly harshly. That argument seems unlikely because it appears Biden will avoid any risk of jail time under a deal that resolves tax and gun charges against him. But after those contentious deals fell apart under Noreka’s scrutiny last July, special counsel David Weiss may be determined to counter Republican criticism by cracking down on Biden. “No one is above the law,” prosecutor Derek Hines told jurors today. “Not even Hunter Biden.”
While Biden was initially charged only with unlawful possession of a firearm, Weiss’ indictment unsealed in September included two additional felonies based on his denials of drug use, both involving the same underlying conduct. Weiss was initially willing to drop the possession charge after Biden completed a pretrial diversion program, which would have increased the maximum sentence from 10 years to 25 years.
If Biden is convicted, he could still avoid jail time for gun crimes. this era noted that “nonviolent first-time offenders who are not charged with using a weapon in other crimes rarely receive prison time on the charge.” However, the fact that Biden was prosecuted for violating Section 922(g)(3) marks a His case is highly unusual.
Judging from drug and gun ownership survey data, approximately 20 million Americans are currently committing this felony. The Justice Department prosecutes only a fraction of these potential defendants. Part of the reason is that this type of case is not a high priority, which tells you the logic of treating this crime as a felony, which is currently punishable by up to 15 years in prison (thanks to legislation signed by Father Biden in 2022). But the main reason drug addicts with guns are rarely prosecuted is that the government generally doesn’t know who they are.
Biden’s exception to this rule is primarily the result of two factors. If he hadn’t publicly disclosed his drug use, or if Halle Biden hadn’t publicly disclosed that she owned a gun, there would be no basis to charge him. But even then, federal prosecutors didn’t have to pursue the case, let alone treat the purchase of a gun as a three-count felony. Weiss’ eagerness to show that Biden won’t get a pass just because he’s the president’s son may have played a role in that.
Is this fair? The president’s son may get off easy compared to the nearly four-year prison sentence in which a defendant in a 5th Circuit case cited by Biden’s attorneys was caught with a gun and some broken joints during a traffic stop. But Biden is already worse off than millions of gun-owning drug addicts without the government noticing. This widely despised statute criminalizes violations of anyone’s rights, but its enforcement is haphazard and so uneven that it would be troubling even if it did not arbitrarily deny people their Second Amendment rights.
