As the president’s son prepares to appeal his recent conviction, he will likely renew his challenge to the constitutionality of the federal law that bars drug users from having guns. The high court’s 8-1 ruling on Friday leaves a clear path for that challenge — and even contains some language that could bolster it.
“I think at the end of the day, Hunter Biden may benefit from this,” said Eric Ruben, a professor at the SMU Dedman School of Law and a fellow at the Brennan Center for Justice.
The case decided Friday, United States v. Rahimi, involved a provision of a federal gun-control law that bars people under domestic-violence restraining orders from having firearms. It’s a sister provision to the drug-users prohibition that Biden was found guilty of violating.
Biden’s legal team was closely tracking the Rahimi case and had hoped the court would strike down the domestic-violence provision — an outcome that would have sounded a death knell for the drug-users provision. The court didn’t do that.
But Chief Justice John Roberts emphasized in his majority opinion that the justices were only greenlighting taking guns away from people who had first been deemed by a judge to pose a danger to others. That was what happened with Zackey Rahimi, the Texas man whose case reached the high court.
Roberts bent over backward to stay silent on other scenarios not involving judicial findings of dangerousness.
“[W]e reject the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible,’” Roberts wrote. “‘Responsible’ is a vague term. It is unclear what such a rule would entail.”
Peter Tilem, a criminal defense lawyer and former Manhattan gun prosecutor, said that line is a good sign for Biden.
“If you look at the holding of the court, there has to be a finding by a court that the person is a danger to someone,” he said.
Referring to the section in the U.S. Code that contains the drug-users prohibition, Tilem added: “It seems to me that 922(g)(3), whether someone is a drug user, doesn’t necessarily make them a credible threat to the physical safety of an intimate partner or anyone else.”
Roberts’ opinion does contain an important caveat. The Second Amendment, he suggested, still allows gun bans for “categories of persons thought by a legislature to present a special danger of misuse.” It’s unclear whether people who use drugs would count.
Tilem said if he were representing Biden, he would urge him to challenge the constitutionality of the drug-users ban.
“This is a little-used statute,” he said, “and I would certainly think that he has a very strong claim.”
Biden sought to get the charges thrown out on constitutional grounds before his trial in Wilmington, Delaware, earlier this month. The trial judge rejected that bid, and a jury convicted Biden of three felonies stemming from his purchase of a handgun in 2018. The jury found that he was addicted to, or a user of, crack cocaine at the time of the purchase, and that he lied about his drug use on a gun purchase form.
Biden is expected to be sentenced in October. After that, he can appeal the conviction. When he does, he can revive his constitutional challenge — a legal position that will put him at odds with his father’s gun-control agenda.
But despite the peculiar political circumstances, Biden could be a strong Second Amendment plaintiff. He possessed the gun in question for less than two weeks, and there is no evidence he ever fired it. He faces no allegations of violence. And the gun case was his first criminal conviction — meaning that when he bought the gun, a court had never ruled he was dangerous.
In those respects, Biden is far more sympathetic than Rahimi, who was accused of participating in a string of shootings after a judge placed him under a domestic-violence protective order and barred him from possessing guns.
The Rahimi decision signaled that the justices expect to field more Second Amendment cases in the coming years, as they grapple with the consequences of a landmark 2022 decision that expanded Second Amendment rights. If they decide to weigh in directly on the constitutionality of the drug-users provision, Biden’s case could be a good vehicle to do so.
“What the court is saying is, ‘We’re going to look at this on a case by case basis,’” said Laura Edwards, a professor on the history of American law at Princeton University. “They’re going to be the ones to determine which regulations would be appropriate, which would be a huge power grab on the part of the court.”
