WASHINGTON ― Attorneys for President Joe Biden’s son argued in federal court Monday that charges against Hunter Biden over a gun purchase in 2018 violate the 2nd Amendment of the U.S. Constitution.
The filing bases its argument on the conservative-dominated U.S. Supreme Court’s expansion of 2nd Amendment protections last year, creating an odd synergy between Hunter Biden and the gun-loving Republicans in Congress looking to impeach his father, whom they have claimed was involved in his son’s foreign business dealings.
Hunter Biden was indicted in September for illegally owning a gun in 2018 after he lied on a federal form that asks gun buyers whether they’re on drugs. He admitted in a 2021 memoir that he was habitually using crack cocaine at the time.
On Monday, Biden’s legal team told a federal judge that a ruling last year in New York State Rifle & Pistol Association v. Bruen made federal laws about gun ownership and drug use obsolete.
“Quite simply, asking about Mr. Biden’s status as a user of a controlled status is constitutionally irrelevant to whether he can be denied his Second Amendment right to gun ownership,” his attorney Abbe Lowell said in a motion to dismiss the gun charges.
Monday’s motion is one of several filings challenging Biden’s prosecution by David Weiss, the U.S. attorney who has been investigating Hunter Biden for five years. U.S. Attorney General Merrick Garland named Weiss as a special counsel in the case in September after the collapse of a plea deal addressing the gun purchase violation as well as tax charges.
In the other briefs, Lowell argued that the plea deal should remain in effect and that it was unconstitutional for Garland to name Weiss as a special counsel partly because Congress hasn’t appropriated funds for his office. (Garland has also appointed a special counsel to pursue charges against former President Donald Trump.)
“These charges are unprecedented, unconstitutional and violate the agreement the U.S. Attorney made with Mr. Biden and DOJ’s own regulations,” Lowell said in a statement. “This is not how an independent investigation is supposed to work, and these charges should be dismissed.”
Lowell’s legal arguments also reflect a broader public relations strategy that has Hunter Biden lashing out at his critics. He said in a podcast interview published last week, for instance, that Republicans are trying to “kill” him in order to destroy his father’s presidency. The constant negative attention from Republicans and the media, Hunter Biden said, made it that much harder to avoid relapsing into drug addiction.
“What they’re trying to do is they’re trying to kill me, knowing that it will be a pain greater than my father could be able to handle, and so therefore destroying a presidency in that way,” Biden said.
As for the gun charges, Lowell cited last year’s Supreme Court decision in New York State Rifle & Pistol Association Inc. v. Bruen, in which the court declared that gun restrictions are unconstitutional unless they can trace their origins to some time between the signing of the Bill of Rights and the end of the Civil War.
Lower courts have cited the Bruen ruling to throw out a wide array of gun control laws, ranging from age restrictions on handgun purchases to the federal law barring felons from possessing firearms. The Bruen standard made it so hard to ensure that gun restrictions would pass constitutional muster that some reform-minded legislators avoided trying to pass gun laws this year.
Laws restricting drug users from possessing firearms are uniquely ripe for a court challenge. The wave of state-level marijuana legalization has created a situation in which many otherwise law-abiding gun owners become felons under federal law if they consume marijuana that is legal in their state.
As Hunter Biden’s legal team noted Monday, a federal appeals court ruled in August that the ban on drug users was unconstitutional.
It’s unclear how the Supreme Court will land on the question. In its first hearing on a gun case since Bruen, the justices seemed universally skeptical of a ruling by the U.S. Court of Appeals for the 5th Circuit overturning a federal law barring people from possessing guns while under a protective order for domestic abuse.
The court’s ruling in that case, USA v. Zackey Rahimi, could offer more guidance for how lower courts should interpret Second Amendment arguments like the one raised in Hunter Biden’s case in the future.
