While there’s a high likelihood Hunter Biden’s attorneys will mount a Second Amendment challenge to appeal his Tuesday conviction, legal experts say the odds of gun rights advocates securing a Supreme Court victory through a case bearing the Biden family name are not as certain.
Many Second Amendment scholars think Hunter Biden has a strong constitutional defense on at least one count: his conviction under the law banning firearm possession for anyone who is an “unlawful user of or addicted to any controlled substance.” While this appeal could tee up an interesting Supreme Court case — the president’s son facing off against gun policies his father has long supported — legal experts who spoke with the Daily Caller News Foundation had mixed views on whether the argument would ultimately prevail.
“The argument will go that general drug use around the time of gun purchase is insufficient, that the Second Amendment only permits lawmakers to address drug or alcohol use at the very time of purchase,” former federal prosecutor Joseph Moreno told the DCNF. “It is unlikely this argument will go very far, but it’s why Hunter’s attorney made such a big deal about it at trial.”
Hunter Biden’s legal team moved to dismiss the case based on the Second Amendment before the trial began. Under the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, where it held that gun restrictions must be consistent with the nations’ “historical tradition” of regulation, the statute is “indefensible,” his attorneys argued.
The Fifth Circuit found the law unconstitutional in 2023 when applied to a marijuana user in United States v. Daniels, a case now already pending before the Supreme Court.
“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,” the appeals court held. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
But Hunter Biden may face more resistance, as an addiction to a “hard” drug like crack may prove a stumbling block to judges that may otherwise have been sympathetic, legal experts said.
“While some judges have been sympathetic to marijuana users in this context, it seems highly unlikely that a federal appellate court will hold that the law is unconstitutional as to ‘hard’ drugs like crack cocaine—however strong the purely legal argument for that proposition might be,” Clark Neily, Cato Institute senior vice president for legal studies, told the DCNF. “The two remaining charges involve false statement on federal gun-purchase forms related to drug use; and while Hunter could argue that he should not have had to answer those questions, that argument is unlikely to find sympathetic ears, for the reasons given above; moreover, disagreeing with the legitimacy of certain questions on federal forms does not provide a license to answer those questions falsely, as Hunter Biden did. ”
Should it reach the Supreme Court, certain facts in Hunter Biden’s case may make it an appealing vehicle for the justices to use to clarify this area of the law, Robert Leider, law professor at George Mason University’s Antonin Scalia Law School, told the DCNF. For instance, Hunter Biden was not using the gun for criminal purposes.
Yet other facts, like Hunter Biden’s addiction to a harder drug than defendants in other cases, make it less appealing, Leider noted. Regardless, it’s unlikely that his two charges for making false statements to the gun dealer are invalidated.
“The court would likely say that even if he had a Second Amendment right to buy the gun, he did not have a right to lie to the dealer,” Leider said.
If Hunter Biden loses his appeal, Neily doesn’t think the Supreme Court would get involved.
“In the highly unlikely event the court of appeals declared the federal prohibition on drug users possessing guns to be unconstitutional, then I think it’s fairly likely the Supreme Court would take the case and reverse,” Neily continued.
The Firearms Policy Coalition (FPC) reiterated on Tuesday an earlier offer to support Hunter Biden in his legal battle against gun control. FPC President Brandon Combs, who said his organization stands “ready to assist Mr. Biden in his challenge of federal gun laws,” told the DCNF it seems “very likely” his case reaches the Supreme Court.
“We think the historical record shows that he should prevail on his as-applied challenge,” Combs said. “Success, however, is impossible to predict. The government always has the upper hand, especially in criminal cases.”
Nevertheless, the irony of Hunter Biden’s conviction was not lost on many Second Amendment advocates. The National Association for Gun Rights said in a statement Tuesday that “the Biden family is getting a taste of their own anti-gun medicine.”
“Joe Biden has done everything in his power to weaponize his administration against guns, gun owners, and dealers, and it’s incredibly ironic to now see his own son caught up in these efforts,” Gun Owners of America Senior Vice President Erich Pratt similarly said in a statement to the DCNF. “Gun Owners of America believes the underlying law is unconstitutionally broad, but so long as it remains on the books, Hunter deserved no special treatment or mercy.”
