The son of President Joe Biden is set to be arraigned Tuesday on, after a deal that included a diversion in connection with a firearms charge and a guilty plea to two misdemeanor tax charges collapsed in court over the summer.
Whilemay have been prepared to enter a diversion program for the gun possession allegation, his defense attorneys are indicating they plan to argue that one of the statutes he is charged with violating — a ban on gun possession for drug users — is unconstitutional.
The argument hinges on a new framework laid out by the Supreme Court last year in a closely watched decision that. In its ruling, the court’s conservative majority said gun restrictions must be consistent with the “nation’s historical tradition of firearm regulation.”
In the wake of the high court’s ruling, scores of longstanding gun laws have, and Abbe Lowell, Hunter Biden’s lawyer, has publicly suggested he believes the law banning drug users from having guns is unconstitutional, as some federal courts have found.
Thestem from his possession of a Colt Cobra 38SPL revolver in October 2018, which prosecutors previously said he unlawfully possessed for 11 days after lying on the firearm registration form about his drug use. One count alleges Hunter Biden provided a false written statement about his drug use on the form used for firearms purchases, and the second count is for allegedly giving a false statement to the dealer to keep for its records, as required by the federal government. The third count is for allegedly possessing a firearm while he was a known drug user.
If convicted on all charges, Hunter Biden could face a maximum sentence of 25 years in prison and fines of up to $750,000.
In response to the indictment, Lowell said his client “was not a threat to public safety” when he possessed the unloaded gun and said of special counsel David Weiss that his “bending to political pressure presents a grave threat to our system of justice.”
“We believe these charges are barred by the agreement the prosecutors made with Mr. Biden, the recent rulings by several federal courts that this statute is unconstitutional, and the facts that he did not violate that law, and we plan to demonstrate all of that in court,” he continued.
The charges are the first brought by Weiss in his investigation into Hunter Biden since he wasby Attorney General Merrick Garland last month. Other potential charges, including the tax counts Hunter Biden had previously intended to plead guilty to, could still be brought against the president’s son.
For now at least, if the case goes to trial, it could take place in the midst of Joe Biden’s 2024 reelection campaign.
A looming court fight over historical tradition
Though the case against Hunter Biden is in its early stages, questions have arisen about the constitutionality of the law cited in the indictment against him on the possession charge.
In the wake of the June 2022 Supreme Court decision that laid out a new standard for determining whether firearms restrictions comport with the Constitution, some U.S. district courts have found the drug-user provision does not withstand Second Amendment scrutiny because those courts said the government failed to show how it is consistent with the nation’s historical tradition of gun regulation.
“The current landscape with regard to this unlawful user prohibition is somewhat unclear,” Andrew Willinger, executive director of the Duke Center for Firearms Law, told CBS News, though he noted that most district courts have upheld the law.
But in August, the U.S. Court of Appeals for the 5th Circuit found the drug-user statute to be unconstitutional as applied to a Texas man, Patrick Daniels, who admitted to regularly using marijuana. In its decision, the three-judge panel acknowledged that while the nation’s history and tradition “may support some limits on an intoxicated person’s right to carry a weapon,” it doesn’t “justify disarming a sober citizen based exclusively on his past drug usage.”
Keith Rosen, a former federal prosecutor, said an issue for the prosecutors in the case involving Hunter Biden could be establishing that he was actively using drugs in the 11-day span he had the revolver.
“I think this is going to be an important question that the defense is going to raise as they litigate this case. I suspect they’ll argue, just like in Daniels, that it may be true that Hunter was using drugs during this period of time when he got the gun, but unless the government can prove that he was high at the time that he physically had the gun then they can’t prevail,” Rosen said. “I think the government will resist that. Historically, courts would not have required the government to prove that somebody was high at the specific time that they were holding the weapon, but in light of Daniels I think that’s going to be a live issue in this case.”
Willinger said there is “interesting interplay” between the illegal possession charge and the other two in the indictment related to the alleged false statements.
“It does seem like the lying charges may rise and fall with the [possession] charge because if it turns out that a court says [the measure] is unconstitutional as applied to Biden, then the sale would not have been unlawful,” he said.
The charges against Hunter Biden were brought in federal district court in Delaware, where appeals are heard by the U.S. Court of Appeals for the 3rd Circuit. That court has been asked to review a Pennsylvania man’s conviction on three counts of possession of a firearm by an unlawful drug user, who argues the law doesn’t pass constitutional muster.
The Biden administration has urged courts to uphold the statute, pointing to founding-era laws that disarmed intoxicated people, people struggling with mental illness and those deemed dangerous to public peace or safety. Willinger predicted the Justice Department would maintain that position in the case involving Hunter Biden.
“It seems to me a little more of an obvious case to take on appeal and to push hard for constitutionality here from the government’s perspective because it’s not dealing with marijuana, where you have legalization at the state level. It’s dealing with a different controlled substance,” Willinger said.
The White House has declined to comment on the case involving the president’s son, directing questions to the Justice Department.
While the Supreme Court’s decision last year in New York State Rifle and Pistol Association v. Bruen, now known simply as Bruen, has threatened decades-old gun laws, the justices will have the chance to clarify their historical tradition test with a case they will hear Nov. 7.
That dispute involves the 30-year-old law prohibiting people under domestic violence restraining orders from having guns, which the 5th Circuit concluded was unconstitutional because the government failed to meet its burden of showing it’s consistent with the nation’s historical tradition of gun regulation.
The Justice Department could also ask the high court to review a 3rd Circuit decision that struck down a law banning felons from having guns.
“The combination of those two cases might shed some light on how the court believes that this new test applies in this prohibited-persons category,” Willinger said.
He noted that the court could adopt a view expressed by Justice Amy Coney Barrett when she was a federal appeals court judge, in which she concluded that history shows that legislatures have the power to bar dangerous people from possessing guns.
“If the court really embraces that dangerousness principle, then I think it has potentially major consequences for the felon ban and also potentially for these other provisions like,” the prohibition on unlawful drug users, Willinger said.
Still, he said it would be “pretty startling” for the Supreme Court to strike down the drug-user provision on its face.
“I find that to be unlikely, especially when you start to think about some of the controlled substances that might be sort of reality-altering drugs. I don’t see the Supreme Court or really a majority of circuit courts reaching that outcome,” he said.
Second Amendment groups respond
Though Hunter Biden could join those challenging the constitutionality of gun laws under the conservative Supreme Court’s new framework, pro-Second Amendment groups are not jumping to his defense.
Gun Owners for America said after Hunter Biden’s indictment that it “opposes all gun control, but so long as this President continues to use every tool at his disposal to harass and criminalize guns, gun owners and gun dealers, his son should be receiving the same treatment and scrutiny as all of us.”
National Rifle Association spokesman Billy McLaughlin told CBS News that “laws should be applied equally against all criminals.”
The group added, “The United States Supreme Court has ruled that federal law prohibits ‘knowingly mak[ing] any false statement or representation with respect to the information required by this chapter to be kept in the records’ of a federally licensed gun dealer.’ The Bruen ruling does not address this matter.”