Hunter Biden Gun Conviction Law Has Divided US Appeals Courts

Hunter Biden may have a chance at appealing his recent gun conviction on Second Amendment grounds, as federal courts are divided on the legality of the statute he was charged with violating.

The law has come under scrutiny from federal courts following the US Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. That decision said courts should turn to history and tradition in determining whether gun restrictions violate the Second Amendment.

Attorneys for the president’s son said they will “vigorously pursue all the legal challenges” over the June 11 jury verdict in Delaware finding him guilty of illegally possessing a firearm while being an unlawful user of or addicted to a controlled substance. He was also found guilty of two counts of lying on a federal form about his substance use.

“There’s at least a chance Hunter Biden would win that appeal,” said Adam Winkler, a professor at the UCLA School of Law who specializes in gun policy.

While no federal court has struck down the statute, 18 U.S.C. § 922(g)(3), as unconstitutional, some have said it doesn’t hold up as applied in certain cases.

“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,” wrote Fifth Circuit Judge Jerry Smith in one of those rulings. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”

Biden’s trial judge rejected a constitutional challenge to the charge in his case.

Legal experts said that Biden isn’t guaranteed a win, even though the appellate court that would review his conviction said last year that, in the case of another nonviolent criminal, another statute against felons possessing guns violates the Second Amendment.

Split Courts

No federal court so far has struck down the gun ban for drug users as unconstitutional. The US Court of Appeals for the Eighth Circuit in April rejected a constitutional challenge to the law, but left the door open for the charge to be dismissed in other cases.

The Fifth Circuit, in the case USA v. Daniels, also tossed the charge for a marijuana user. Legal scholars tracking gun rulings said the rationale in that case—that there is no historical comparison for the restriction—is likely to be used by Biden’s attorneys in an appeal. His legal team raised the case earlier in unsuccessfully fighting the charge before the trial judge.

The Fifth Circuit is also scheduled to hear arguments next month in another criminal case, in which US District Judge Kathleen Cardone also dismissed the charge.

“Section 922(g)(3) breaks with historical intoxication laws by prohibiting not just firearm use by those who are actively intoxicated but also firearm possession by those who use controlled substances, even somewhat irregularly. And it breaks with broader historical traditions of gun regulation by disarming individuals without any sort of pre-deprivation process,” Cardone wrote last year.

Hanging over a Biden appeal is another Fifth Circuit decision: The court’s holding in USA v Rahimi, in which it found unconstitutional a provision barring those under domestic violence orders from possessing firearms.

The Supreme Court is expected to rule on that case in the coming days, after a majority of the justices appeared skeptical of upholding the appeals court’s decision.

Andrew Willinger, executive director of the Duke Center for Firearms Law, said the statute in Rahimi and in Biden’s case are similar. He said both address the concern that these individuals are dangerous and need to be disarmed, even if they haven’t been convicted of a crime.

“In the aggregate, if the Supreme Court reverses [Rahimi], that probably makes the appeal more of a long shot,” Willinger said.

The Third Circuit has also cast doubt on another gun ban following Bruen. The en banc court in 2023 said that the government “did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support” disarming the man in the case, who had pleaded guilty to making a false statement to obtain food stamps.

There’s now a circuit split on whether the felon gun possession ban is unconstitutional.

Legal experts said that Third Circuit ruling signals that the court might at least be receptive to arguments against the provision on drug users possessing guns.

“If you’re going to strike down a law banning felons possessing firearms, you’re certainly likely to strike down a law banning users of controlled substances who’ve never been convicted of a crime from possessing firearms,” Winkler said.

Still, they said that circuit decision was in the context of a sympathetic plaintiff who filed a civil lawsuit and wasn’t charged with violating the gun law.

“The atmospherics might change some of the ways that the judges view the case, so I’m not sure exactly what the court would do,” said Jacob Charles, a law professor at Pepperdine University who has tracked federal challenges to gun statutes post-Bruen.

But Charles noted that the Supreme Court hasn’t yet acted petitions seeking its review of that case and the Fifth Circuit’s Daniels decision, ahead of the justices’ ruling in Rahimi.

“I think they’re going to get more guidance before the Third Circuit’s going to get a chance to rule anyways,” he said.

Remaining Charges

Even if Biden successfully challenges his gun possession charge, it’s unclear whether his convictions for lying about his drug use on forms to obtain the gun would also be reversed.

His attorneys argued before the trial court that, if the underlying statute were found to be unconstitutional, any false statements are then not material to the gun sale and the charges should be tossed.

But legal experts said it might not be that easy.

“The obligation to provide truthful accurate information in connection with a purchase is different than the underlying prohibition,” said Willinger, the Duke firearms expert. “You still have an obligation to actually be accurate in how you fill out that form.”

Charles pointed to a decision by the Seventh Circuit, against a man who was also convicted of lying on the government forms when buying a gun. The court said in that opinion that the word “material” in the statute “does not create a privilege to lie, when the answer is material to a statute, whether or not that statute has an independent constitutional problem.”

He said that decision is likely going to be “persuasive to other judges.”

The case is USA v. Biden, D. Del., No. 1:23-cr-00061