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Here’s one for the amateur legal eagles among our pro-gun camp, but as most are well aware, the legal landscape surrounding the gun ban for drug users is increasingly complex, especially as more states legalize the use of marijuana while it remains steadfastly illegal under federal law. As a result of that and other legal rulings, federal courts remain divided on the statute that led to Hunter Biden’s recent conviction.

Biden’s attorneys have vowed to “vigorously pursue all the legal challenges” following his conviction for illegally possessing a firearm while being a drug user and for lying about his substance use on a federal form, writes Jacqueline Thomsen for Bloomberg Law. (Yes, it’s owned and run by the same anti-gun Bloomberg empire TTAG readers will know and despise, but Thomsen’s article was interestingly a fairly straightforward look at the way courts have fallen on the law.)

This legal battle, she notes, stems from the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which emphasized that gun restrictions must align with historical and traditional practices. As a result, some federal courts have questioned the constitutionality of 18 U.S.C. § 922(g)(3), the law Biden was charged under.

Legal expert Adam Winkler noted, “There’s at least a chance Hunter Biden would win that appeal.”

Although no federal court has outright struck down the statute as unconstitutional, some rulings suggest that it may not hold up in certain cases. For instance, Fifth Circuit Judge Jerry Smith argued that “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.”

Despite the trial judge rejecting a constitutional challenge in Biden’s case, legal scholars highlight that federal courts are split on similar issues. The Eighth Circuit upheld the law, but the Fifth Circuit, in USA v. Daniels, dismissed charges against a marijuana user, suggesting Biden’s legal team might use this rationale in their appeal.

Another pivotal case, USA v. Rahimi, involves the Fifth Circuit’s decision that found a provision barring those under domestic violence orders from possessing firearms unconstitutional. The Supreme Court’s pending decision on this case could also influence Biden’s appeal. Andrew Willinger from the Duke Center for Firearms Law remarked, “If the Supreme Court reverses [Rahimi], that probably makes the appeal more of a long shot.”

Additionally, the Third Circuit has questioned another gun ban post-Bruen, indicating potential receptivity to arguments against disarming drug users who haven’t been convicted of a crime.

“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 suggested.

However, the outcome remains uncertain.

“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,” legal expert Jacob Charles from Pepperdine University pointed out.

One key point to keep in mind is even if Biden’s gun possession charge is overturned, his convictions for lying on federal forms to obtain the gun might stand. Legal experts argue that the obligation to provide truthful information is distinct from the underlying prohibition.

“You still have an obligation to actually be accurate in how you fill out that form,” Willinger emphasized, though the punishment for lying on a form is likely much less than violating gun laws.

Either way, despite Biden’s recent conviction, this legal battle is far from over and could ultimately prove to shape gun law in a way that may create obstacles for his father’s anti-gun political agenda.

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47 COMMENTS

  1. “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 suggested.”

    I hate to think of the new laws that will be ‘required’ if someone is SWI/SUI. Shooting While Intoxicated / Shooting Under the Influence.

    Actually shooting or carrying.

    • Its already a law.
      If you get caught drunk or with marijuana while your in possession of a gunm you go from misdemeanor to felony.

      • I could be wrong but I’m not sure about it being a felony if drunk. Weed is still illegal according to the feds, alcohol isn’t.

        If weed stays in your system for days, how would they test if you are still under the influence if you haven’t smoked/eaten an edible for a while?

  2. “This legal battle, she notes, stems from the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which emphasized that gun restrictions must align with historical and traditional practices.”

    Actually, it doesn’t stem from Bruen. 18 U.S.C. § 922(g)(3) hasn’t been found unconstitutional yet so its still valid and that’s what Hunter violated, so it stems from 18 U.S.C. § 922(g)(3) – if he lied or not on the form, thus he did lie (in true like father like son fashion) and was illegally in possession.

    • I’m not on any fence. The federal law is the law until it isn’t. I’m a whole lot more concerned about non-violent felons being disarmed(no not a certain billionaire). Meanwhile the slaughter continues apace in Chiraq by criminals who passed no background check’s🙄

      • Because they exercise their right to be armed without .givs permission. Somthing law abiding citizens do not do. Law abiding citizens get permission from their giverment to exercise their Right.
        And since .giv believes everyone is guilty until proven guilty, why not.

  3. It makes no sense at all to legalize drugs (or de-criminalize) when the use of these drugs are still very much illegal. Sooner or later someone (perhaps a president) WILL start enforcing the federal ban and then we will see all the weed smokers in this country go nuts. Even though this entire nation knows it is not legal. Yet it is. This is the catch 22 that our government has put us in. The truth is, until it’s legal…it isn’t. My personal views on it is completely meaningless either way. It is a question on the 4473 and as long as that is the case then it’s an issue. I think the form itself needs to go away but that is a different question. Being a official federal document, we are all compelled by law to be honest and accurate when filling it out. A decision needs to be made on this. Either make it legal or not. Riding the fence on this is NOT acceptable. I don’t see any indication that many people understand that the biggest portion of the US population is drugged.

    I see no reason outside of family corruption to not go after Biden for something else like tax evasion or money laundering. They want to take down Trump over meaningless minutia and then ignore the much more important matters surrounding our current president. Pelosi, Schiff(forbrains), Clinton, Biden, and Schumer are the ones that should be on trial for insurrection.

    • “A decision needs to be made on this. Either make it legal or not.”

      As I understand it, the determination/ruling/clarification already exists: federal law supersedes any state, or local, law. What needs to be done now is federal charges for everyone who permitted/permits federal law to be contravened, i.e., legislators and state judges.

      As a “libertine”, there should be no human action sanctioned for morality, or legality, unless and until participants cause provable harm to humans, and other living things. Punish the results, not the potential.

      • Ok. So who do we get to press charges on states that ‘legalized’ weed? Who presses charges on California, New York, and Ill Anoy for their gun control? or is this all just criminal activity getting ignored by DC?

        This is a serious question. No joke.

        • “So who do we get to press charges on states that ‘legalized’ weed?”

          Serious answer: Can’t be done, without an absolute monarch. We already saw what happens when government decides to evade the Constitution; it will revert to “might makes right”, and just maybe, amend the Constitution to favor the king, after all the bodies are buried.

          • Ok. So, the federal government says weed is illegal and the states can’t legally override that but if they did then there is no consequence? It certainly sounds like the same thing we see with anti-2A gun control.

            (but then that makes sense with Trump getting tried for insurrection in a state court)

            Somehow I doubt that the Constitution was written to allow all this chaos. Because that is exactly what this is.

            • “Somehow I doubt that the Constitution was written to allow all this chaos.”

              Actually, the Constitution was written to allow states to rule themselves, with little oversight/interference from the central government as possible..and those limits codified in the Constitution itself.

              Thus, the founders were not wary of a nation of hodgepodge (of then “State”)laws. Liberty meant individuals could pick and choose between (now) states wherein to live, and liberty to go elsewhere when desired.

              The Central Committee has little direct authority for the overwhelming federal code of laws we have today.

              (It was amusing to watch people react when it became blatantly obvious that the assassination of of a president wasn’t a federal crime)

              The elected representatives of our constitutional republic did/do what humans always do – – seek personal power over others, ignoring any impediment to passing laws without direct constitutional authorities.

              Liberty, when lost, can only be restored via kinetic processes.

          • If this is going to be the American way then there is no reason at all why Texas can’t legalize firearm suppressors for it’s own residence. There is also nothing to prevent Texas (or any state) from formalizing a divorce from the union.

            Basicly what we are saying here is that laws don’t matter regardless who makes them. If we can agree on this nationally then I think we just might have this whole thing licked.

            • On the first count, current federal law (Civil Rights Act, 1964) was originally established because the SC declared that because toothpicks were transported via “commerce” from one state to another, no public accommodation could enforce segregation laws; Texas cannot claim that all materials used in manufacturing/building suppressors is contained solely within Texas.

              Further, in any type of political activity that allows citizens to vote, the base theory becomes one of “might makes right”, the majority rules, and one has a “democracy”, regardless of firewalls purporting to defend against “mob rule”.

              Thirdly, based on a post-Civil War 2.0 SC ruling, secession is not legal (but only supported by direct force of arms). Thus, the question of “legal” secession has not been settled, once and for all. The closest possibility is the constitutional mechanism for creation of new states.

              • [no state or nation] can claim that all materials used in manufacturing/building of anything is contained solely within said boundaries. Certainly not with a world economy. This is a basis for the elimination of all borders unilaterally across the planet.

                As to might makes right. I completely believe in Limbaughs thought that ours is a world governed by the aggressive use of force. The problem here is that if the human race never evolves to something higher than that, the result is death and perpetual misery. The United States has tapped into something higher and that is the single biggest reason for it growing so powerful so fast.

                Secession might not have been truly settled but like presidential immunity, that just might change sooner than any of us thought it would. It wont be easy and would likely be bloody. This nation is being takin over by the same evil communism that we have been fighting for decades. We can stop the lunacy. It requires unity. What we are seeing is a replay of what has happened in other places around the world. We are in a better position than they were.

                Freedom is worth the cost.

    • I always shute better when I’m drunk, the targets gets this fuzz around it making it appear bigger and if I miss the one I thought I was looking at I always hit the other one.

  5. Prove Hunter Biden was addicted to or a user of at the time of his gunm purchase.
    “I quit yesterday, I’ve been clean and sober for 23 hours.”
    The only way is a drug test presented to the FFL not less then two hours before your gunm purchase.
    Would that be considered an infringement?
    It’s not like .giv is keeping you from your 2Ammedment Rights, you’ve just got to prove your not guilty to have your 2Ammedment Rights.
    That’s why it’s called a Right and not a privilege.
    If it was a privilege you’d have to get a license or a card from .giv to have gunms. Well some gunms, for other gunms you have to get a special license and a card. You still get your 2A, if your privileged, because it’s a Right.

    • Sirens and lights and duct tape no body cameras. Oh yeah, all on the up and up.
      Little Rock should be burning.

    • “In his letter, Jones said the agents had properly identified themselves with police running lights and sirens outdoors before they entered and announced their presence at the front door“

      • This sequence of events is morally indefensible.

        Not wearing / turning off body cams by police should remove qualified immunity. Everyone signing off on this early morning raid (from the Judge to the regional ATF director) should be jailed.

      • I say a lot of sht, that doesn’t mean it’s true.
        Like the time I had to fight off a hoard of cannibals to save my war hero uncle.
        That never really happened, the reason I fought them was because they didn’t want to share.

        • I also wrote a letter,,,, to my x girlfriend, it said “I love you!” She couldn’t read it because she was already in the stew pot.

  7. Here’s the deal…Gun or no Gun if your answer to a yes or no question under penalty of law is no when the answer should have been yes and sign your name means you lied and risk suffering the consequences.

    Now all of a sudden people want to backpedal their way out of a jam by using the Constitution when excercising a Constitutional Right is what got hunter into the jam. I do not recall hunter ever being an advocate for the Constitution or the Second Amendment so what we have is hypocrisy. FJB.

    TRUMP 2024.

    • What I wish Freedom to be and what it is are two entirely different things. Taking the penalities of lying seriously into account if hunter was a law abiding citizen he would not have lied. Instead he would not sign a 4473 and would have given himself time to purge the drugs from his system and at that point passed a documented drug test then returned and purchased the firearm.

      If anyone wants to change things then they need public support. I suggest they start by Defining Gun Control by its Deranged History for America’s spoon fed Gun Control loving History illiterates. Anything less is blowing Hot Air…
      https://youtube.com/watch?v=7A3zBe1zWRg&feature=shared

      • Wouldn’t Freedom be not having to ask the giverments permission to exercise a constitutional Right?
        I get it, its Hunter Biden son of Joe.
        Hate trumps Rights, right?

  8. Simple solution. No paperwork. No background checks. The way the constitution calls for.

    Unless I am actively serving a prison sentence my rights should be full.

    • Well it used to be that way. Like buying a Charter Arms Bulldog from a hardware store, or ordering your shotgunm from Sears.
      Do gunm laws keep Presidents from being assassinated or is it the security detail and secret service?
      Japan

    • Across the span of the entirety of the existence of the United States of America, the bulk of it was spent NOT requiring paperwork. Unless you are referring to cash that is.

  9. “One key point to keep in mind is even if Biden’s gun possession charge is overturned, his convictions for lying on federal forms to obtain the gun might stand. Legal experts argue that the obligation to provide truthful information is distinct from the underlying prohibition.”

    Recent case law is very solid on the lying:

    UNITED STATES OF AMERICA v. ECHO SCHEIDT (2024) | FindLaw
    https://caselaw.findlaw.com/court/us-7th-circuit/116248595.html

    • Lying versus government.
      Knee deep knee deep knee deep, said the bullfrog in a puddle of shit.

  10. @Prndll

    “For we are not fighting against flesh-and-blood enemies, but against evil rulers and authorities of the unseen world, against mighty powers in this dark world, and against evil spirits in the heavenly places.”

    • The tactic described is designed to force pro-gun organizations to exhaustively defeat gun control, one cockroach at a time. And then, when enjoined, do it all over again, depleting financial resources. Cockroaches can never be exterminated from the planet. Anti-gun (except for criminals) states and orgs will continue to absorb 2A ammunition, until there is no one remaining with financial resources to challenge anti-gun laws.

      After some undetermined time passes, the populace will get bored fighting government to no useful result.

    • Sad, sad attempt, classic false equivalence.

      Hunter Biden unlawfully possess a firearm for 11 days, and then his sister-in-law threw it away. No guns were provided to anyone, no crimes were committed with the firearm.

      So what is the same situation the article claims?

      “The ATF alleged that Vaughn, then 27 and living in North Liberty, Iowa, purchased seven handguns over an 18-month period, and that two of the weapons ended up in the hands of convicted felons“

      Let’s see, continuing criminal enterprise over a year and a half versus 11 days, seven firearms trafficked versus one, at least two weapons provided to actual convicted felons, versus no firearms transferred by Hunter.

      And you’re using that case to justify your claim of a “two tiered Justice system”?

      Weak assed lies are all you’ve got.

      • “Hunter Biden unlawfully possess a firearm for 11 days, and then his sister-in-law threw it away. No guns were provided to anyone, no crimes were committed with the firearm.”

        First you state that a crime was committed then you say no crimes were.

        Hhhmmm…🤔

        • No matter what anyone says Miner49 will dispute it.
          Because Miner49 is smarter then anyone else.
          It doesn’t have to make sense, Miner49 just wants to prove your wrong.
          I’m still confused on his K31 not being a drought resistant grass, he just wanted to “try” and make me out as ignorant.
          If you take notice, Miner49 never has a personal story of his own, its always of someone else.
          He knew and old woman who got bit by Copperheads, he knew a guy that knew a guy.
          Never once has he said “I did this from personal experience.”
          I’m going to quit picking on him because I believe for his entire life he has sat in a wheelchair blowing on a straw.
          He would even argue about hiring the handicapped.
          Poor guys got a problem.

        • “First you state that a crime was committed then you say no crimes were.”

          Homeschooled?

          I did not say no crimes were.

          I stated “no crimes were committed with the firearm”.

          In a vain attempt to find fault with my comment, you were forced to misstate my post, got it.

          And of course, you ignore the total incongruity of the two different situations, because to point out truthfully the difference between the 18 month continuing criminal enterprise of gun trafficking, and an addict flailing in the depths of his addiction, would cause other members of the cult to doubt your loyalty.

          • You said there was a crime committed with a firearm.

            “Hunter Biden unlawfully possess a firearm…”

            That is a crime with a firearm.

          • @Miner49er

            “I did not say no crimes were.

            I stated ‘no crimes were committed with the firearm’.”

            You are a moron. The very act of lying on the form, the very act of possessing the gun illegally, is a crime committed with the firearm.

            Stop it with your false equivalence and lack of knowing what context means BS.

  14. I blame the drug [email protected]@tion crowd for the complete mess of our drug laws. They only care about get intoxicated. And at the same time they want to avoid, any responsibility or the consequences of their intoxication.

    There are probably a 1000 different things. You can make out of marijuana. And They have nothing to do with getting intoxicated.

    But the drug of lega.liza.tion crowd doesn’t promote any of that. All they care about is getting high.

  15. Does the Constitution allow any trashing of the Bill of Rights because of any reason other than insanity (true insanity, not contrived)? Yet convicted felons, after serving their sentences, are deprived of their Second Amendment Rights. I don’t care how the Supreme Court came to this, it is clearly NOT in the Constitution. Just because you have alcohol or marijuana at home, does this mean you can be deprived of God-given rights? The Constitution has no allowance for any of this, regardless of kangaroo courts making it up out of whole cloth.

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