Attorneys for President Joe Biden’s son Hunter are calling on a federal court to dismiss a case against their client over gun charges stemming from his use of an illicit drug while in possession of a firearm, arguing that prosecutors are applying an unconstitutional statute that would criminalize millions of marijuana consumers acting in compliance with state law if broadly enforced.
In a motion to dismiss filed with the U.S. District Court for the District of Delaware on Monday, Hunter Biden’s defense said the gun charges violate the Second Amendment and represent a politically motivated prosecution over a law that is seldom enforced, barring people who use currently illicit drugs from buying or possessing firearms.
They asserted that the prosecutor has allegedly acknowledged that “an ordinary citizen would not be prosecuted for this offense is borne out by DOJ’s policy and statistical evidence.”
“Sections 922(g)(3) is very broad (unconstitutionally so), covering millions (if not tens of millions) of gun owners who use substances controlled under federal law, including marijuana, even if those drugs are legal at the state level. Yet they are almost never used,” the filing says, citing data that indicates at least 16 million gun owners have violated the statute and “could be subject to criminal prosecution” for “the exact conduct of which Mr. Biden is accused.”
Biden’s charge isn’t related to marijuana specifically; rather it concerns his disclosure that he was a regular user of crack cocaine for a short period where he also admitted to owning a gun. So it’s notable that attorneys are drawing the cannabis connection to bolster their argument that the statute is discriminatorily applied.
Biden was close to entering into a plea agreement earlier this year that would have avoided prosecution over the gun charge, but those negotiations fell apart. Before that, his attorneys had similarly suggested that a separate federal court ruling deeming the firearm ban for cannabis consumers unconstitutional meant the charge should be dropped.
They’re still making that constitutional case, but the latest filing emphasizes the rarity of prosecutions under the federal statute.
“In years 2008–2017, for example, of the 132,464 criminal prosecutions under federal gun statutes, only 1.8 percent were brought under Section 922(g)(3),” the motion says.
While lying on the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form to buy a gun is a felony offense, the legality of the underlying question about drug use itself has come under scrutiny in several federal courts, especially as cannabis is concerned.
Last month, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
In a brief submitted in that case, attorneys for the Justice Department argued the firearm ban for marijuana consumers is further justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.
The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling from August, Daniels v. United States, that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled in February that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.
In August, meanwhile, ATF sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law in May, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
While people who use cannabis are barred from owning firearms under the statute, a little-notice FBI memo from 2019 that recently surfaced shows that the federal government generally does not consider it a violation of the law for medical cannabis caregivers and growers to have guns.
Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee last month and is pending floor action.
Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
Meanwhile, Sen. Cory Booker (D-NJ) said in July that while he believes the justice system has effectively handled the prosecution against the president’s son, there’s still a double-standard in the country that has allowed presidents and members of Congress to admit to past marijuana use with impunity while subjecting thousands of less privileged people to punitive cannabis laws.
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