Does Hunter Biden Have a Constitutional Case?

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posted on June 10, 2023
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AP Photo/Patrick Semansky

While President Joe Biden (D) continues to call for “universal” background checks for firearm sales, his son’s attorneys are reportedly preparing to argue that Hunter Biden shouldn’t be charged with lying on a federal background check form because last year’s New York State Pistol & Rifle Association v. Bruen ruling rendered his background check unconstitutional.

In 2018, Hunter Biden purchased a firearm from a licensed dealer, and, while filling in the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Form 4473, he answered “no” to the question of whether he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.” However, per Hunter’s own account of his addiction—as chronicled in his 2021 book, Beautiful Things—Hunter appeared to have been taking illegal drugs during that period.

Under long-standing federal law, lying on Form 4473 is a felony punishable by up to 10 years in federal prison. Both the ATF and the FBI have seemingly known about the felony by the president’s son for several years. Yet, as this was being written, no charges had been brought against Hunter Biden.

Recently, however, talks have heated up about the possibility of charges being filed against the younger Biden for the 4473 violation. And that has led to a very interesting line of argument by Hunter’s attorneys.

As The New York Times recently reported, two people briefed on the matter indicated that, based on the Bruen decision, “Mr. Biden’s lawyers told Justice Department prosecutors—who were investigating whether to charge him in connection with a gun purchase—that a prosecution of him would likely be ruled moot.”

It’s interesting that Hunter’s attorneys would stake their client’s defense on a U.S. Supreme Court decision that his father, who happens to be the president, said, at the time of the ruling, was an affront to “common sense and the Constitution.”

According to the new standard of review under Bruen, when determining the constitutionality of a firearm law, the court now must first determine if “the Second Amendment’s plain text covers [the] individual’s conduct” the government hopes to restrict. If it does, “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” If the government fails to carry this burden, then the challenged law cannot stand.

Background checks are a relatively modern invention, so one could argue that they are not “consistent with the Nation’s historical tradition of firearm regulation.” The same could be said of laws prohibiting drug addicts from buying guns at the Founding or during the period in which the 14th Amendment was ratified. Like many other firearm prohibitions, the federal prohibition on unlawful users of controlled substances is on uncertain constitutional ground under Bruen.

This line of defense, however it might work out, could be very uncomfortable for the Biden administration to deal with.

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