Republicans want it both ways: less gun control and Hunter Biden gun charges

<span>Photograph: Elizabeth Frantz/Reuters</span>
Photograph: Elizabeth Frantz/Reuters

After spending years attacking Hunter Biden over his allegedly illegal behavior, Republicans reacted to the news of his indictment last week with a measure of disappointment.

Congressman James Comer, the Republican chair of the House oversight committee who has focused his investigative work on the president’s son and his business dealings, described the three-felony gun charges filed against Hunter Biden as “a very small start”. In a post shared to his social media platform Truth Social, Donald Trump lamented that the gun charges were “the only crime that Hunter Biden committed that does not implicate Crooked Joe Biden”.

Despite Republicans’ gripes, a number of legal experts have framed Hunter Biden’s indictment as unusually harsh, given that prosecutors rarely bring such gun charges. The law underlying one of the three criminal counts is also now facing legal challenges after the supreme court’s recent expansion of second amendment rights.

Related: Hunter Biden: the moments that pushed president’s son into spotlight

Meanwhile, the legal morass has put conservatives in an awkward position, as they simultaneously pillory Hunter Biden and champion the loosening of firearm regulations that could get his charges thrown out.

News broke on Thursday that Hunter Biden had been indicted on three charges brought by David Weiss, the special counsel who has been investigating the president’s son for about five years. The first two charges accuse Hunter Biden of lying on an official form to obtain a gun in 2018, when he was struggling with an addiction to crack cocaine. The third count alleges that the president’s son illegally possessed the firearm while addicted to a controlled substance. If convicted, Hunter Biden could face up to 25 years in prison. In a Tuesday court filing, his attorney said he would plead not guilty to federal gun charges.

The indictment, which marked the first time in US history that federal criminal charges were brought against the child of a sitting president, came months after prosecutors’ plea deal with Hunter Biden collapsed amid scrutiny from the judge overseeing the case. That deal would have allowed Hunter Biden to plead guilty to two misdemeanor tax offenses while having the gun charge dismissed, assuming he met the conditions of a pre-trial diversion agreement.

Republicans had attacked the original plea agreement as a “sweetheart deal”, but legal experts described the terms as notably punitive given the crimes alleged. According to data compiled by the US sentencing commission, of the 6,549 people sentenced in the US in 2021 for illegal gun possession, only 5% (or roughly 350 people) were charged for their drug use.

“I have charged many defendants with gun offenses in my former career as a federal prosecutor,” Renato Mariotti, a legal affairs columnist for Politico Magazine, wrote in June. “But until this week I had never heard of a prosecution of anyone for possessing a firearm while addicted to a controlled substance before the Hunter Biden case.”

Charges over lying on forms necessary to purchase firearms are similarly rare, with fewer than 300 cases being brought in the year that Hunter Biden bought his gun, according to data compiled by the Washington Post.

A white hand fills out a print-out that says at the top ‘Firearms Transaction Record’.
Charges over lying on forms necessary to buy firearms are rare, with fewer than 300 cases brought in the year Hunter Biden bought his gun. Photograph: George Frey/AFP/Getty Images

Hunter Biden’s legal team has criticized the case against him as flimsy, accusing Weiss of bowing to political pressure from Republicans.

“As expected, prosecutors filed charges today that they deemed were not warranted just six weeks ago following a five-year investigation into this case,” Abbe Lowell, one of Hunter Biden’s attorneys, said on Thursday. “We believe these charges are barred by the agreement the prosecutors made with Mr Biden, the recent rulings by several federal courts that this statute is unconstitutional, and the facts that he did not violate that law, and we plan to demonstrate all of that in court.”

Those recent rulings include an August decision from the New Orleans-based US court of appeals for the fifth circuit that challenged the law barring users of illegal drugs from possessing firearms. The conservative-leaning court ruled that the supreme court’s decision last year in New York State Rifle & Pistol Association Inc v Bruen, which established a new standard for reviewing firearm regulations in a historical context, rendered the 1968 law unconstitutional.

“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,” Judge Jerry Smith wrote in the ruling. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”

Because the fifth circuit oversees only Louisiana, Texas and Mississippi, the decision will not have a direct impact on Hunter Biden’s case in Delaware. But Hunter Biden’s legal team may cite the fifth circuit’s ruling to build a broader argument challenging the constitutionality of the charges against him.

“Other courts of appeals’ decisions are oftentimes persuasive to their sister circuits, especially on a case like this where there hasn’t been a lot of post-Bruen precedent,” said Jacob Charles, a professor at Pepperdine University’s Caruso School of Law and a constitutional law scholar focusing on the second amendment.

A separate case considered by the third circuit, which does cover Delaware, could also have some bearing on Hunter Biden’s case. In Range v Attorney General, the third circuit issued what the judges called a “narrow” decision indicating that the federal government cannot ban people convicted of non-violent crimes from possessing guns.

“There’s distinctions that a court might find relevant, but it’s certainly a case within the circuit that I think Hunter Biden’s attorneys would probably cite if they’re going to challenge this,” Charles said.

The stakes of Hunter Biden’s case have presented a challenge for gun rights groups. Although those groups oppose the gun laws now being used against Hunter Biden, they jumped at the opportunity to attack a president they view as hostile to their mission.

“Gun Owners of America opposes all gun control, but so long as this President continues to use every tool at his disposal to harass and criminalize guns, gun owners and gun dealers, his son should be receiving the same treatment and scrutiny as all of us,” Erich Pratt, senior vice-president of Gun Owners of America, said in a statement last week.

Other gun rights groups remained silent, indicating a reluctance to engage in a case that underscores the murky legal questions lingering in the wake of the supreme court’s decision in Bruen. Lower courts have struggled in their efforts to interpret and enforce the new Bruen standard, and the supreme court will probably have to weigh in soon with more guidance on evaluating gun regulations, including the law barring drug users from possessing firearms.

“It’s certainly possible that either the [supreme] court could decide a question that’s relevant to [Hunter Biden’s] case, and then it’s going to affect this case, or even decide a case that’s about this particular provision and then directly control this case,” Charles said.

So the president’s son may soon find himself smack dab in the middle of a much larger battle over the second amendment and gun rights in America.