On the eve of trial, Hunter Biden’s legal team has taken aim at what it means to be an “addict” for purposes of federal law while shifting Second Amendment jurisprudence continues to shadow his prosecution.
After multiple unsuccessful attempts to have his case dismissed, the President’s son is set to stand trial on federal gun charges beginning June 3rd. Specifically, a jury will decide if he is guilty of lying on a background check form used to purchase a firearm about his drug use and whether he illegally possessed the purchased firearm as someone who “is an unlawful user of or addicted to any controlled substance.”
In a trial brief filed Thursday, Biden’s legal team suggested he plans to invoke a Bill Clinton-like interpretation of the federal prohibition and its temporal relationship to his drug use as a defense against those charges.
“Additionally, the issue here is Mr. Biden’s understanding of the question, which asks in the present tense if he ‘is’ a user or addict,” his lawyers wrote. “The terms’ user’ or ‘addict’ are not defined on the [background check] form and were not explained to him. Someone, like Mr. Biden who had just completed an 11-day rehabilitation program and lived with a sober companion after that, could surely believe he was not a present tense user or addict.”
At first glance, such an argument might appear to be a last-ditch effort to stave off a conviction, particularly for someone whose lengthy struggles with substance abuse are well known and whose purchase and possession of the firearm in question is not in dispute. However, in practice, such an argument is fairly typical for similarly situated defendants. It’s also successfully persuaded judges, according to one legal expert familiar with these types of charges.
Dru Stevenson, a South Texas College of Law professor who studies the drug-user-in-possession ban’s applications, said it is common for courts and federal law enforcement to construe the statute narrowly when applying it to defendants.
“Both the courts and the [Bureau of Alcohol, Tobacco, Firearms, and Explosives] have taken the position that it has to be both contemporaneous and ongoing drug use at the time,” he previously told the Washington Free Beacon. “So, it’s not, ‘Have you ever had an addiction problem?’ and they’re definitely not working with the mental health idea that once you’re an addict, you’re always an addict or something like that.”
Of course, Hunter Biden is also not the typical defendant, and he may have inadvertently made such a defense harder for himself with his past public statements about his addiction struggles. He described “smoking crack every 15 minutes” the same year he purchased the gun in his memoir “Beautiful Things,” for instance. That statement, combined with the photos the prosecution plans to introduce of Biden actively using drugs on his infamous laptop, could make it much harder for Biden’s team to convince a jury that he did not consider himself to be an active drug user when he purchased the firearm—particularly if they can tie the events to a sufficiently narrow timeline.
Perhaps knowing that Biden’s highly publicized drug use poses a particular problem for his case, his legal team pushed for a restricted interpretation of the statute. They requested that Judge Maryellen Noreika instruct the future jury that a defendant violates the federal gun ban for drug users “only when a person is simultaneously armed and actively intoxicated, and using the weapon in some way that terrifies or endangers others.”
“As there is no evidence that Mr. Biden ever loaded or fired the weapon, displayed it publicly, or threatened anyone with it, and was not in actual possession of the firearm throughout the entire eleven days from the time of purchase to disposal, the Special Counsel cannot meet that burden,” they wrote.
However, Judge Noreika ultimately rejected such a narrow reading of the statute at the final pre-trial hearing on Friday, according to CNN. She determined instead that the prosecution would have to prove only that he was generally using drugs at the time of possessing the firearm and not that he specifically used drugs on the day he purchased it or used it. That’s a relatively narrow read, but it’s much closer to what the prosecution was hoping for.
At the same time, the constitutional questions surrounding Hunter Biden’s charges continue to swirl in the background of the looming trial. Though Judge Noreika rejected Biden’s attempt to have his charges dismissed as facially unconstitutional under the Second Amendment, she left open the possibility of an as-applied challenge at a later date.
Biden’s legal team agreed not to challenge his prosecution under the Second Amendment during trial, according to CNN. That means Biden will likely have to wait until after an initial guilty verdict to raise constitutional questions about the underlying law. Should it come to that, the arguments about the timing of his drug use and gun possession could become even more relevant.
The only federal appeals court to date to issue a merits ruling on an as-applied challenge to the federal gun ban for drug users struck it down against a particular marijuana user. That court emphasized the temporal distinction Hunter Biden’s legal team is attempting to make in his defense.
“In short, our 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,” Fifth Circuit Judge Jerry E. Smith, a Ronald Reagan appointee, wrote for a unanimous panel in U.S. v. Daniels. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
Even courts that have upheld the ban in recent months have acknowledged that the few near-analogues to the modern-day gun ban for drug users that existed around the time of the Founding only restricted access to firearms while actively intoxicated, not simply for having ever used intoxicants.
“For drinkers, the focus was on the use of a firearm, not its possession. And the few restrictions that existed during colonial times were temporary and narrow in scope,” Eighth Circuit Judge David Stras wrote in U.S. v. Veasley, rejecting a facial challenge to the statute. “Disarmament, on the other hand, was not an option. There was even less regulation when it came to drugs.”
While those decision happened in separate circuits and don’t hold precedential value for his case, they do bode well for Biden as persuasive authorities to reference in a potential appeal. Additionally, the Third Circuit, where his appeal would occur, has already struck down certain categorical bans on prohibited persons on Second Amendment grounds.
None of this is to say that a Biden Second Amendment victory is guaranteed or even necessarily likely. Jury trials in high-profile criminal cases are notoriously unpredictable, especially in cases featuring well-resourced defendants imbued with broader cultural tensions. Furthermore, though the landscape for Second Amendment jurisprudence has become more unsettled than ever following the Supreme Court’s 2022 Bruen decision, far more judges have upheld the drug user gun ban than have overturned it.
But the son of a gun-control championing President could soon become a convicted felon for breaking gun laws, only to subsequently have that conviction overturned by expanding gun rights in what could be a landmark constitutional challenge. That this is even a possibility—in the middle of his father’s re-election campaign, no less—makes what otherwise might be a run-of-the-mill case into a major news story.
