As the president’s son prepares to appeal recent conviction, he will likely renew his challenge to the constitutionality of the federal law that prohibits drug users from possessing weapons. The high court 8-1 decision on Friday leaves a clear path to this challenge – and even contains some language that could reinforce it.
“I think at the end of the day, Biden Hunter can benefit from it,” said Eric Ruben, a professor at the SMU Dedman School of Law and a fellow at the Brennan Center for Justice.
The case was decided on Friday, United States x Rahimi, involved a provision of a federal gun control law that prohibits people under domestic violence restraining orders from possessing firearms. It’s a sister provision to the ban on drug users that Biden was found guilty of violating.
Biden’s legal team was closely monitoring the Rahimi case and hoped the court would strike down the domestic violence provision – a result that would have sounded a death knell for the drug users provision. The court did not do this.
But Chief Justice John Roberts emphasized, in their majority opinion, that the justices were merely giving the green light to take guns away from people who had initially been deemed by a judge to pose a danger to others. That’s what happened to Zackey Rahimi, the Texan whose case reached the high court.
Roberts took pains to remain silent about other scenarios that did not involve judicial findings of dangerousness.
“[W]We reject the Government’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 gun prosecutor, said that line is a good sign for Biden.
“If you look at the court’s decision, there must be a finding by the court that the person is a danger to someone,” he said.
Referring to the section of the US 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 them a credible threat to the physical safety of an intimate partner or any other person.”
Roberts’s opinion contains an important caveat. The Second Amendment, he suggested, still allows gun bans for “categories of persons deemed by a legislature to present a special danger of misuse.” It’s unclear whether people who use drugs would count.
Tilem said that if he were representing Biden, he would urge him to challenge the constitutionality of the ban on drug users.
“This is an underused statute,” he said, “and I certainly think it has a very strong claim.”
Biden sought to have the charges dismissed on constitutional grounds before his trial in Wilmington, Delaware, earlier this month. The judge rejected the offer, and a jury convicted Biden of three felonies stemming from the purchase of a gun in 2018. The jury concluded that he was an addict or user of crack cocaine at the time of the purchase, and that he lied about his drug use on a form of purchasing weapons.
Biden is expected to be sentenced in October. After that, he will be able to appeal the conviction. When he does, he could revive his constitutional challenge – a legal position that will put him in conflict with his father’s gun control agenda.
But despite the peculiar political circumstances, Biden could be a strong demander of the Second Amendment. He had owned the gun in question for less than two weeks and there is no evidence that he ever fired it. He does not face charges of violence. And the gun case was his first criminal conviction — meaning that when he bought the gun, a court had never ruled that he was dangerous.
In these respects, Biden is much more sympathetic than Rahimi, who was accused of participating in a series of shootings after a judge placed him under a domestic violence protective order and banned him from carrying weapons.
O Rahimi decision signaled that the justices expect to bring more Second Amendment cases in the coming years as they face the consequences of a historic decision of 2022 which expanded Second Amendment rights. If they decide to express their opinion directly on the constitutionality of the provision relating to drug users, Biden’s case could be a good vehicle to do so.
“What the court is saying is, ‘Let’s take this on a case-by-case basis,’” said Laura Edwards, a professor of American legal history at Princeton University. “They will be the ones to determine what regulations would be appropriate, which would represent a huge power grab by the court.”
