The U.S. Constitution’s Second Amendment does not protect President Joe Biden’s son from felony gun charges, federal prosecutors said in a new brief.
“Anglo-American law has long recognized that the government may disarm those who, by their conduct or characteristics, present an increased risk to public safety if they possess firearms,” prosecutors said in the Jan. 16 filing. That means a U.S. law against gun ownership by people who use or are addicted to drugs can still stand under the U.S. Supreme Court’s 2022 decision that struck down restrictions in New York, they added.
Hunter Biden, 53, is facing three felony counts after certifying on a form in 2018 that he was not a user of or addicted to drugs. Mr. Biden later wrote in his memoir that he was using drugs at the time.
But lawyers for the defendant argued in late 2023 that the statute Mr. Biden was charged with violating is not constitutional under court precedent, including the Supreme Court decision in New York State Rifle & Pistol Association v. Bruen.
“In truth, the statute is indefensible under the Bruen framework,” they wrote in a motion to dismiss.
Lawyers referenced a recent appeals court ruling in favor of Patrick Daniels Jr. from Mississippi. Mr. Daniels was convicted of violating the same law because he was a marijuana user who owned a gun.
Mr. Daniels challenged the law in question, 18 U.S.C. §922(g)(3), under the new Bruen framework, and the court said that the government failed to demonstrate the existence of laws from around the time of America’s founding that prohibited gun ownership for intoxicated individuals.
While several states passed similar laws after the Second Amendment was adopted, such a small number doesn’t support a tradition, the court said. “In short, neither the restrictions on the mentally ill nor the regulatory tradition surrounding intoxication can justify Daniels’s conviction,” the ruling stated.
But prosecutors said Tuesday that the case is nonbinding, noting that the Supreme Court has taken it up but has yet to rule on the matter.
They said that many laws throughout history barred gun ownership among people deemed to present a danger to the public and that the choice by Congress to prohibit ownership by drug users “falls firmly within longstanding historical traditions and accords with the Second Amendment.”
That includes the 1662 Militia Act, enacted by the English Parliament, and laws in the 1800s in the United States that prevented intoxicated people from carrying guns, prosecutors said.
“In short, the prohibitions contained in § 922(g) are simply the latest step in a lengthy history of firearm regulation aimed at addressing the threat to public safety by individuals whose conduct or characteristics present an increased risk of danger when possessing a firearm,” prosecutors said, making the law in question “relevantly similar” to the historical laws, a criteria outlined in Bruen.
Studies show that drugs impair physical and mental function and “it is practically beyond reasonable dispute that firearm possession while operating under significant cognitive impairment in critical areas like attention, speed of processing, emotional regulation, inhibition control, and the ability to prioritize negative long-term consequences—not to mention psychological and physiological effects like panic, paranoia, tremors, or muscle twitches—presents a significant public safety risk,” prosecutors added.
Mr. Biden is accused of making several false statements related to the gun he bought and owned.
Mr. Biden bought a Colt Cobra 38SPL revolver on Oct. 12, 2018, from a store in Delaware.
He was presented with a form asking whether he used or was addicted to drugs. Despite his admission of drug use, he answered ‘no’. Had he answered ‘yes’, the store would have been legally prohibited from selling him the gun.
Eleven days later, Mr. Biden’s girlfriend found the weapon in his unlocked vehicle and threw the firearm and associated items into a trash can behind a grocery store in Wilmington. An elderly man discovered the items and police later obtained them from him. Authorities placed the items into “an evidence vault” and no charges were brought.
Searches of Mr. Biden’s account, undertaken as federal agents investigated him for tax crimes, uncovered evidence that led to the firearm charges. That included pictures showing drugs and texts relating to how Mr. Biden was using drugs. He later wrote in his memoir that he was addicted to drugs during the period he bought and owned the revolver.
If the gun law is struck down as unconstitutional, the false statement counts should also be dismissed, Mr. Biden has also argued through his lawyers.
“The charges for falsely checking a box on a form denying being a user of a controlled substance and causing the seller to retain that form with a falsely checked box both fall to the wayside, along with the charge for unlawful possession of a firearm, once Section 922(g)(3) is found unconstitutional,” they said.
Prosecutors urged the court to also reject that position.
They noted that earlier Supreme Court rulings have concluded that “a defendant cannot make a false statement to evade a statute the defendant believes is unconstitutional and escape criminal liability for the false statement by arguing the unconstitutionality voids his knowingly false statement.”