Hunter Biden’s prosecution on federal firearms charges stems from a seven-page form that potential gun buyers must fill out when purchasing a gun from a licensed gun store. The form includes standard questions about things that would disqualify someone from legal gun ownership, such as prior felony convictions, mental health issues or illegal drug use.
The drug issue has landed Biden in court — prosecutors say he lied on gun purchase paperwork in 2018 when he said he didn’t use drugs. Biden’s lawyers say he did not consider himself a drug addict when he bought the gun.
While people are sometimes prosecuted for allegedly lying on the form, experts say this usually happens as part of a larger case involving more serious behavior, and cases like the one against Biden are rare.
Here are some things you need to know about the form and its associated weapons charges:
THE PAPERWORK
The Firearms Transaction Record, also known as ATF Form 4473, is essentially an application to purchase a gun from a licensed dealer. It is used for a quick background check to ensure the buyer is not legally prohibited from owning a gun. There are nine items on the form that can disqualify a buyer, and most of them are easy to check, says Jacob Charles, associate professor at Pepperdine University’s Caruso School of Law.
If a person has been convicted of a crime punishable by more than one year in prison, or has been involuntarily committed to a mental institution, this information will appear on the background check. But one of the big problems with the unlawful drug user portion of the form is that it is difficult to verify, Charles said.
“It’s pretty rare for this rule on the background check alone to be prosecuted,” Charles said. “It can be difficult to prove these types of cases because unless someone confesses or is under the influence at the time, there isn’t always much evidence.”
That’s especially true in states like Oregon and Washington, where some drugs, like marijuana, have been legalized locally, though they remain illegal under federal law.
“In every state that has legal marijuana, there are hundreds of thousands of people who own firearms,” Charles said. If they also use marijuana — even with a medical marijuana card — they are illegal gun owners under federal law, he said.
THE PERSECUTIONS
Andrew Willinger, executive director of the Duke Center for Firearms Law, said charges of illegal gun possession typically appear in court as part of larger criminal cases.
Prosecutions like the one against Biden — where the charges are not related to another crime such as drug possession, theft or assault — are unusual, Willinger said.
“It’s rare for this to be the lead charge in a case. These are usually filed as additional charges when there is more serious conduct — against someone with a long criminal history, someone who has engaged in violent conduct with a firearm,” Willinger said. “Fellow possession of a gun is the most common charge, and it is also the easiest to prosecute because all you have to do is indicate that the person was involved in a crime and that he or she has a gun.”
Prosecuting someone for gun possession while on drugs requires a fact-intensive investigation, Willinger said, and that usually depends on having evidence of multiple instances of drug use in the weeks or days leading up to the gun purchase.
THE NUMBERS
It is difficult to determine how often people are actually prosecuted for illegal gun possession under each of the nine disqualifying categories listed on Form 4473. But Willinger says the numbers are minuscule compared to the millions of gun purchase requests submitted each year.
It’s easier to keep track of how many people are denied purchases. According to the U.S. Department of Justice’s Bureau of Justice Statistics, approximately 25 million applications for gun transfers or permits were filed in 2020. Only about 1.6% of those – roughly 398,000 – were denied, and about half of these denials were the result of the applicant having a felony conviction, charge, or arrest. Drug use or addiction accounted for about 8.6% of denials, according to the agency.
In other words, only about 0.13% of total gun transfer or permit applications in 2020 were rejected due to drug use or possession.
More recent statistics are scarce, but a report from the U.S. Government Accountability Office shows that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives referred approximately 12,700 denied firearm purchases to the field divisions for further investigation in fiscal year 2017. As of June 2018, only twelve of these cases had been federally prosecuted.
Hunter Biden is accused of purchasing and illegally possessing a gun over an eleven-day period in October 2018.
