Hunter Biden could soon find himself championing Second Amendment legal protections in an attempt to defend against possible charges for possessing a firearm as a drug user - a position that would square off against his father's own administration.
The president's son is under investigation by the Justice Department, a portion of which involves a 2018 gun purchase. During that time, the younger Biden said he was a regular cocaine user.
Federal law prohibits drug users from owning guns, but a Supreme Court ruling last year that essentially broadened Second Amendment protections puts that prohibition into question – and Biden's lawyers could use the argument as part of his defense.
This scenario could put diametrically opposed foes – Biden and conservative Republicans – on the same side of trying to bolster pro-Second Amendment legal precedent.
First reported in Politico, Biden's lawyers have already told DOJ officials that, if their client is charged with the gun crime, they will challenge the law under the Second Amendment, a person familiar told the publication.
When he bought the gun in 2018, Biden filled out a federal form on which he allegedly claimed that he was not "an unlawful user of, or addicted to" any "controlled substance," Politico reported in 2021. However, according to Biden’s 2021 memoir, he frequently used crack cocaine at the time.
"I was smoking crack every 15 minutes," he wrote.
The Gun Control Act of 1968 prohibits unlawful drug users from owning firearms, the publication noted. The Bureau of Alcohol, Tobacco and Firearms says that ban applies to people who have admitted to using illegal drugs in the months before purchasing a gun.
However, that provision has recently faced legal challenges, following the Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, which says that changed the test that lower courts use in evaluating challenges to firearm restrictions.
Conservatives praised the ruling as an opportunity to loosen gun restrictions. President Biden called said he was "deeply disappointed" in the ruling and said it "contradicts both common sense and the Constitution."
However, in order to avert up to 15 years in prison should he be charged and convicted of such a crime, the president's son might use new conservative arguments to his advantage.
Politico notes that since Bruen, most courts have still upheld the law banning drug users from owning guns, according to Jeff Welty, a professor at the School of Government at the University of North Carolina who closely tracks gun cases, but several have ruled against it.
"A majority isn’t everybody," Welty told the publication. "And given how unsettled the law is in this area, I think anyone charged with a violation of that statute would give serious consideration to raising the Second Amendment as a defense."
Several lower courts have considered the statue in light of the Bruen decision, but no broad consensus on if the statue should fall entirely has been reached.
U.S. Attorney David Weiss, who is leading the probe into Hunter Biden, is said to be finalizing his investigation into Biden for allegedly two misdemeanor tax filing charges, a felony tax evasion charge and a false statement charge over the gun purchase.
Hunter Biden's attorneys met with DOJ officials in April.