Attorneys for President Joe Biden’s son reportedly told Justice Department officials that a recent federal court ruling on gun rights for people who use marijuana should invalidate any charges related to allegations that he lied about his drug use on a federal firearms purchase form.
As federal prosecutors investigate the 2018 handgun purchase, which took place at a time when Hunter Biden disclosed that he was a regular user of crack cocaine, his attorneys are challenging the idea that he could be effectively prosecuted for allegedly saying that he was not an unlawful user of drugs when he filled out the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form.
Lying on the ATF document is a felony offense—but the constitutionality of the underlying drug question itself has come under scrutiny in several federal courts, at least as far as cannabis is concerned. And according to The New York Times, Biden’s counsel is specifically citing a February ruling in the U.S. District Court for the Western District of Oklahoma that deemed the ban preventing marijuana consumers from buying and possessing firearms to be unconstitutional.
President Biden’s Department of Justice has strongly defended the prohibition in several lawsuits, maintaining that people who use marijuana or any controlled substance are inherently dangerous and unsuited to own guns. If charges are brought against the younger Biden and his defense team challenges the constitutionality of the drug ban—which Politico also reported his lawyers informed DOJ officials they will do—it would set the stage for a novel legal showdown, with the administration forced to defend the policy against the president’s son.
The basis for the district court’s ruling in the marijuana case—as well as the other ongoing lawsuits on cannabis and gun rights—is recent U.S. Supreme Court precedent set in New York State Rifle & Pistol Association v. Bruen, which says that any gun restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.
The Justice Department is appealing the district court’s decision to the U.S. Court of Appeals for the Tenth Circuit. And it’s set to go before the U.S. Court of Appeals for the Fifth Circuit this month in another case following a challenge to a federal district court ruling that also concerns firearm possession by a person who admitted to being a cannabis consumer.
The president hasn’t directly weighed in on the lawsuits, but he has talked about the ATF policy in the context of his son’s alleged dishonesty on the form.
“This thing about a gun—I didn’t know anything about it,” the president told CNN last year. “But turns out that when he made application to purchase a gun, what happened was he—I guess you get asked—I don’t guess, you get asked a question, are you on drugs, or do use drugs?’ He said no. And he wrote about saying no in his book.”
“So, I have great confidence in my son,” he said. “I love him and he’s on the straight and narrow, and he has been for a couple years now. And I’m just so proud of him.”
As far as ATF is concerned, the marijuana firearms ban is unambiguous and enforceable, including in states where marijuana has been legalized. Shortly after Minnesota’s governor signed a legalization bill into law this week, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
Meanwhile, even as ATF maintains that it must enforce the ban, the agency recently updated its own cannabis employment policy.
The update make it so applicants who’ve grown, manufactured or sold marijuana in compliance with state laws while serving in a “position of public responsibility” will no longer be automatically disqualified—whereas those who did so in violation of state cannabis policies won’t be considered.
Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation last month to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.