Here Is Why a Federal Judge Rejected Hunter Biden's Second Amendment Challenge to His Gun Charges

Last Thursday, a federal judge in Delaware rejected Hunter Biden's Second Amendment challenge to the three gun charges he faces for buying a revolver in October 2018, when he was a crack cocaine user. In a 10-page order, U.S. District Marylellen Noreika concludes that 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess firearms, is not unconstitutional on its face, meaning there are at least some cases in which the provision can be enforced without violating the right to keep and bear arms.

Noreika's decision does not end a constitutional dispute that pits Biden against his own father, who has steadfastly defended a policy that could send his son to prison. That policy denies Second Amendment rights to millions of Americans with no history of violence, including cannabis consumers, whether or not they live in states that have legalized marijuana.

Noreika's ruling leaves the door open to an "as-applied" challenge if and when Biden is convicted, meaning he can still argue that his prosecution violates the Second Amendment at that point. That claim may ultimately be resolved by the U.S. Court of Appeals for the 3rd Circuit, which has yet to address the constitutionality of Section 922(g)(3) under the test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.*

If Biden is convicted and his appeals are unsuccessful, he could face a substantial prison sentence. When he bought his gun, violations of Section 922(g)(3) were punishable by up to 10 years in prison. The Bipartisan Safer Communities Act, which his father signed into law in 2022, raised the maximum penalty to 15 years. But even though Congress views gun ownership by illegal drug users as a serious crime, it is rarely prosecuted. While survey data suggest that millions of gun owners are guilty of violating Section 922(g)(3), fewer than 150 Americans are prosecuted for that offense each year.

The two other gun charges that Biden faces, which are based on the same transaction, likewise are rarely prosecuted. One alleges a violation of 18 USC 922(a)(6), which applies to someone who knowingly makes a false statement in connection with a firearm transaction. The other involves 18 USC 924(a)(1)(A), which applies to someone who "knowingly makes any false statement or representation with respect to the information" that a federally licensed dealer is required to record.

Both charges are based on the same conduct: Biden checked "no" in response to a question on Form 4473, which is required for gun purchases from federally licensed dealers: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" That check mark, according to federal prosecutors, qualified as two felonies, punishable by a combined maximum prison sentence of 15 years. Although actual sentences tend to be much shorter than the maximums, Biden theoretically faces up to 25 years in prison for conduct that violated no one's rights.

Biden argued that Section 922(g)(3) fails the Bruen test, which requires the government to show that a gun law is "consistent with this Nation's historical tradition of firearm regulation." He added that the ancillary charges also should be dismissed because they would not be possible but for Section 922(g)(3).

In rejecting Biden's motion to dismiss, Noreika relies heavily on a recent decision by the U.S. Court of Appeals for the 8th Circuit. Last month in United States v. Veasley, the 8th Circuit rejected a facial challenge to Section 922(g)(3), citing the legal treatment of "the mentally ill" in the 18th and 19th centuries.

In the 18th century, the appeals noted, justices of the peace were empowered to order the confinement of "lunatics" who were deemed a threat to public safety. Since such confinement "did not include access to guns," the court reasoned, it was clear that "lunatics" had no such rights. And by the late 19th century, states had begun to prohibit gun sales to people of "unsound mind." Together with "the even longer tradition of confinement," the 8th Circuit said, "these laws suggest that society made it a priority to keep guns out of the hands of anyone who was mentally ill and dangerous."

Those precedents, the appeals court said, amply justify Section 922(g)(3): "The 'burden' imposed by § 922(g)(3) is 'comparable,' if less heavy-handed, than Founding-era laws governing the mentally ill. It goes without saying that confinement with straitjackets and chains carries with it a greater loss of liberty than a temporary loss of gun rights. And the mentally ill had less of a chance to regain their rights than drug users and addicts do today. Stopping the use of drugs, after all, restores gun rights under § 922(g)(3)." The court thought the justification for Section 922(g)(3), "which is to 'keep guns out of the hands of presumptively risky people,'" is "also comparable."

The 8th Circuit assumed that drug users are analogous to "lunatics" and people of "unsound mind" who are "mentally ill and dangerous." But the U.S. Court of Appeals for the 5th Circuit rejected that analogy last year, when it overturned the Section 922(g)(3) conviction of Patrick Darnell Daniels Jr., a Mississippi man who was caught with a gun and the remains of a few joints after he was pulled over for driving without a license plate in April 2022.

"Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence," the 5th Circuit said in United States v. Daniels. "The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically 'insane' person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness."

Noreika also cites district court decisions that accepted the Justice Department's analogy between Section 922(g)(3) and early laws that made it a crime to publicly carry or discharge firearms while intoxicated. But the 5th Circuit rejected that analogy, and so did the 8th Circuit.

As both courts noted, those historical laws addressed a specific hazard—drunken gun handling—with narrow restrictions. They applied only in public and only to people who were actively intoxicated. They did not apply to private possession of firearms, let alone impose a categorical ban on gun ownership by drinkers.

"Under the government's reasoning," the 5th Circuit said, "Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far."

The 8th Circuit reached a similar conclusion. "For drinkers, the focus was on the use of a firearm, not its possession," it noted. "And the few restrictions that existed during colonial times were temporary and narrow in scope." It added that "there was even less regulation when it came to [other] drugs," which were widely available without a prescription in the 19th century.

"The government concedes that its 'review of early colonial laws has not revealed any statutes that prohibited [firearm] possession' by drug users," the 8th Circuit noted. "It took until 1968, with the passage of § 922(g)(3), for Congress to keep guns away from drug users and addicts….The fact that 'earlier generations addressed the societal problem…through materially different means [is] evidence that' disarming all drug users, simply because of who they are, is inconsistent with the Second Amendment."

Since it viewed the comparison between Section 922(g)(3) and laws aimed at preventing drunken gun handling as problematic, the 8th Circuit instead relied on the comparison between drug users and people who are "mentally ill and dangerous." It also invoked "the Founding-era criminal prohibition on taking up arms to terrify the people."

The 8th Circuit conceded that "not every drug user or addict will terrify others, even with a firearm." It is "exceedingly unlikely," for example, that "the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety" will "pose a danger or induce terror in others." But "those are details relevant to an as-applied challenge, not a facial one," the court added. "For our purposes, all we need to know is that at least some drug users and addicts fall within a class of people who historically have had limits placed on their right to bear arms."

Noreika emphasizes that the 5th Circuit characterized Daniels as upholding an "as-applied" challenge. "We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels," the appeals court said. Noreika concludes that Daniels therefore provides no support to Biden's challenge. The 5th Circuit's reasoning nevertheless casts doubt on the notion that illegal drug users, as a class, are so dangerous that they have no Second Amendment rights.

Noreika finds that "the overwhelming weight of the district courts lends no support to Defendant's position either." But she notes three decisions in which federal judges concluded that Section 922(g)(3) charges were unconstitutional.

United States v. Harrison, decided in February 2023, involved an Oklahoma marijuana dispensary employee who was pulled over on his way to work for failing to stop at a red light in May 2022. Police found marijuana and a loaded revolver in his car. U.S. District Judge Patrick Wyrick dismissed a Section 922(g)(3) charge, rejecting the government's contention that "Harrison's mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."

United States v. Connelly, decided two months later, involved a Texas woman who was charged with illegal possession of firearms after El Paso police found marijuana and guns in her home while responding to a domestic disturbance in December 2021. U.S. District Judge Kathleen Cardone concluded that Section 922(g)(3) "does not withstand Second Amendment scrutiny."

U.S. Magistrate Judge Robert Numbers reached the same conclusion that July in United States v. Alston, which also involved a marijuana user charged with violating Section 922(g)(3). "The government has failed to establish that historical laws regulating the mentally ill, the intoxicated, or the dangerous are sufficiently analogous to § 922(g)(3)," Numbers wrote. "The founding-era laws the government offers sought to remedy different problems than § 922(g)(3) does, and they did so through less-restrictive means. Taken together, the historical examples discussed above are not analogous enough to § 922(g)(3) to establish the statute's constitutionality." Last October, U.S. District Judge Louise Flanagan agreed that "the government has not met its burden of proving that § 922(g) is consistent with the Second Amendment."

Although Noreika describes only that last decision as upholding a facial challenge, Cardone's conclusion that Section 922(g)(3) "does not withstand Second Amendment scrutiny" went further than deeming a specific prosecution unconstitutional, and all three decisions rejected the government's historical analogies in no uncertain terms. Furthermore, all of these cases were resolved before trial, as Biden sought to do in his case.

Why does Noreika say that remedy is not available to Biden? "Defendant argues that § 922(g)(3) is unconstitutional under the revised framework announced in Bruen because there is no 'historical precedent for disarming citizens based on their status of having used a controlled substance,'" she writes. "Because Defendant makes no arguments specifically tailored to him or the application of § 922(g)(3) to his facts, Defendant's challenge to the constitutionality of § 922(g)(3) is a facial one….To the extent that Defendant seeks in his motion to raise a challenge to the constitutionality of § 922(g)(3) as applied to him, that request is denied without prejudice to renew on an appropriate trial record."

As Noreika sees it, in other words, Biden has to be convicted before he can challenge his prosecution. But no matter what happens with this particular case, the Biden administration's dogged defense of Section 922(g)(3), especially as applied to cannabis consumers, belies the president's repudiation of the hardline anti-drug position that he took for decades as a senator.

Nowadays, Biden says marijuana use should not be treated as a crime and decries the disadvantages associated with marijuana possession convictions. But his Justice Department simultaneously insists that marijuana use makes people so dangerous that they cannot be trusted with guns—so dangerous, in fact, that they should go to prison for trying to exercise their Second Amendment rights and permanently lose those rights as a result of that felony conviction. The government claims that judgment is supported by historical precedents that bear little resemblance to a 1968 law that categorically deprives people of the right to arms for no good reason.

*Correction: This paragraph has been revised to clarify the timing of Biden's possible appeal.

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