As the president pushes gun safety, Hunter Biden will mount a Second Amendment defense

Hunter Biden on Tuesday plunged into a burgeoning Second Amendment fight: whether the government can disarm people who use illegal drugs.

Lawyers for the president’s son have repeatedly said they will defend him from three federal gun charges by arguing that the main federal law he’s charged under is unconstitutional in light of a recent Supreme Court ruling — an argument that stands in stark contrast to President Joe Biden’s advocacy for stricter gun laws.

And at Hunter Biden’s arraignment in Wilmington, Del., on Tuesday, his legal team formally signaled an intent to mount a constitutional challenge to the charges, which accuse Biden of possessing a gun as a drug user and lying on a federal form when he bought it. Biden pleaded not guilty at the arraignment.

For decades, the federal Gun Control Act has banned drug users from possessing guns. But in 2022, the Supreme Court dramatically expanded Second Amendment rights — and, in some ways, obfuscated them — by ruling that U.S. gun restrictions are valid only if they resemble gun laws that existed in the Founding era. That ruling, New York State Rifle & Pistol Association Inc. v. Bruen, teed off a host of conflicting lower-court rulings about just how closely today’s gun laws must hew to those from the late 1700s.

The drug-users prohibition is among the gun restrictions facing new challenges after Bruen, as defendants argue that Founding-era laws only barred people from carrying firearms while intoxicated — not simply because they had become intoxicated in the past. And as Hunter Biden heads to trial next year, he will become the most famous defendant by far to lean on the Second Amendment, even as his father is expected to make gun safety a focus of his reelection campaign.

Since taking office, the president has taken a slew of executive actions and worked with a bipartisan coalition in Congress to pass the first gun legislation into law in nearly three decades, toughening background checks for young gun buyers, helping states implement red flag laws and keeping firearms from more domestic violence offenders. The president took a step further last month, announcing the first-ever federal office of gun violence prevention.

The Hunter Biden case will create political discomfort for both pro-gun groups and advocates for tighter gun rules.

A spokesperson for the National Rifle Association sent POLITICO a statement saying “criminals ought to pay the price for their crimes.” The spokesperson did not respond to a follow-up query about the NRA’s position on whether the law banning drug users from possessing guns is constitutional.

Multiple high-profile gun safety groups, which are typically outspoken on Second Amendment jurisprudence and have close ties to the Biden White House, declined to comment on Hunter Biden’s intent to launch a Second Amendment challenge.

More broadly on the legal question at hand, multiple organizations also declined to weigh in, though Brady United, in a statement to POLITICO said: “We believe the federal law that bans that is constitutional.” Their reticence to even discuss the underlying legal issue points to the political sensitivity of the case.

The Supreme Court will likely have to decide the law’s constitutionality eventually, and experts say it’s hard to predict where the court will come down, as its conservative majority generally favors both loose gun laws and strict drug laws.

“It does not survive under a faithful application of Bruen, at all,” said Clark Neily, the senior vice president for legal studies at the Cato Institute, a libertarian think tank. “Will the Supreme Court nevertheless uphold it? I would say even money there. There’s almost nothing that the average federal judge or Supreme Court justice won’t do in order to avoid beginning to unravel federal drug prohibition.”

The high court is already gearing up to resolve a related issue that emerged in the post-Bruen confusion: whether the Second Amendment allows the government to ban people under domestic violence restraining orders from possessing guns. The justices will hear that case, United States v. Rahimi, on Nov. 7. Its outcome could have major ramifications for the drug-users prohibition — and, by extension, Hunter Biden’s criminal jeopardy.

Meanwhile, the 5th Circuit Court of Appeals ruled in August that the drug-users prohibition is unconstitutional.

“[O]ur history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage,” the judges wrote.

Other courts, however, have upheld the drug-users prohibition. The 5th Circuit’s ruling is not binding on the courts in Delaware, where Biden is charged.

Prosecutors say the first son purchased a revolver in October 2018, a time when he has admitted he was addicted to crack cocaine. They also say that, as part of that purchase, he lied on a federal form by claiming he was not a drug user. At Monday’s arraignment, a magistrate judge noted that Biden has been passing recent drug tests.

A lawyer for Hunter Biden, Abbe Lowell, said in court that he plans to challenge the constitutionality of the charges in a motion to dismiss, the Associated Press reported.

Biden’s lawyers have been closely following Second Amendment jurisprudence for more than a year — and updating the Justice Department on it. In three letters obtained by POLITICO, the first son’s attorneys argued to prosecutors that the ban on drug users possessing guns is doomed.

In a letter dated Oct. 31, 2022 addressed to the U.S. attorney supervising the probe of the first son, Biden’s lawyers called the drug-user prohibition “constitutionally dubious at best.” Three months later, the attorneys sent the U.S. attorney, David Weiss, another missive flagging a move in the 3rd Circuit Court of Appeals suggesting the court would rule that the Second Amendment bars the government from blocking non-violent people from possessing guns. Delaware is in the 3rd Circuit, making its rulings particularly pertinent. The next month, Biden’s lead lawyer wrote to Weiss noting that a panel of judges in the Fifth Circuit had ruled on the Rahimi case, concluding that people under domestic violence restraining orders had the constitutional right to bear arms.

“[I]t is patently clear that the statutes underpinning the Government’s firearms case will be struck down,” he wrote.

That isn’t a consensus view. Brian Abbas, the director of the Center to Keep and Bear Arms at the Mountain States Legal Foundation, told POLITICO he expects the drug-user ban to be upheld because of conservative justices’ opposition to drug use.