As the president’s son prepares to appeal his recent conviction, he will likely once again challenge the constitutionality of the federal law that bans drug users from owning guns. The Supreme Court’s 8-1 ruling Friday leaves a clear path for that challenge — and even includes language that could support it.
“I think in the end Hunter Biden can benefit from this,” said Eric Ruben, professor at the SMU Dedman School of Law and fellow at the Brennan Center for Justice.
The case was decided on Friday United States v Rahimi, concerned a provision of a federal gun control law that prohibits people subject to domestic violence from owning firearms. It is a sister provision to the ban on drug users, which Biden was found guilty of violating.
Biden’s legal team was closely monitoring the case Rahimi case and had hoped that the court would strike down the domestic violence provision – an outcome that would have sounded the death blow to the drug user provision. The court did not do that.
But Chief Justice John Roberts emphasized in his majority opinion that the judges only gave the green light by taking away weapons from people who had first been considered by a judge to be a danger to others. That’s what happened to Zackey Rahimi, the Texas man whose case reached the Supreme Court.
Roberts went out of his way to remain silent about other scenarios that did not involve judicial findings of danger.
“[W]We reject the administration’s claim that Rahimi can 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 attorney and former Manhattan district attorney, said the line is a good sign for Biden.
“If you look at the court’s ruling, there has to be a finding by a court that the person is a danger to someone,” he said.
Referring to the section of the United States Code that prohibits drug users, Tilem added: “It seems to me that 922(g)(3), whether someone is a drug user, does not necessarily make him 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 “classes of persons whom the Legislature finds to present a special danger of abuse.” It is unclear whether people who use drugs count.
Tilem said that if he were to represent Biden, he would urge him to challenge the constitutionality of the ban on drug users.
“This is a little-used statute,” he said, “and I would certainly think it has a very strong claim.”
Biden sought to have the charges thrown out on constitutional grounds before his trial in Wilmington, Delaware, earlier this month. The judge rejected that offer and a jury convicted Biden of three felonies stemming from his 2018 purchase of a gun. 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. He can then appeal the conviction. If he does, he could 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 claimant of the Second Amendment. He had the gun in question for less than two weeks and there is no evidence he ever fired it. He is not accused 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 that regard, Biden is far more sympathetic than Rahimi, who was accused of taking part in a series of shootings after a judge placed him under a domestic violence protective order and banned him from owning guns.
The Rahimi The decision indicated that the justices expect to hear more Second Amendment cases in coming years as they grapple with the fallout from a landmark 2022 decision expanding Second Amendment rights. If they decide to directly address the constitutionality of the provision for drug users, Biden’s case could be a good tool 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 of the history of American law at Princeton University. “They will be the ones to determine what regulations would be appropriate, which would represent a huge power grab on the part of the court.”
