In an interview with CNN’s Jake Tapper yesterday, President Joe Biden conceded that his son Hunter lied on a government form when he purchased a handgun in October 2018—a federal felony punishable by up to 10 years in prison. The younger Biden was a crack cocaine user at the time, as recounted in his 2021 memoir Beautiful Things. Yet he answered no to this question on ATF Form 4473: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
Last week, The Washington Post reported that federal agents believe they have enough evidence to charge Hunter Biden with making that false statement. Although the Post did not mention it, receiving and possessing the gun he bought was also a felony, which at the time likewise was punishable by up to 10 years in prison. The Bipartisan Safer Communities Act, which President Biden signed into law in June, raised the maximum penalty for that offense to 15 years.
Biden presumably does not think his son should go to prison for lying about his personal habits or for violating a federal law that prohibited him from owning a gun. Neither do I. But if that result would be unjust, why does Biden enthusiastically support the laws that allow it?
Under those laws, someone in Hunter Biden’s position, if convicted, can be sent to federal prison for years or decades. Furthermore, such a conviction would forever bar him from possessing firearms, whether or not he continued using illegal drugs. If he were caught with a gun after being convicted of a felony, he could be prosecuted again, in which case he would now face up to 15 years in prison. And he would carry all the other lifelong burdens of a felony record.
In the CNN interview, Biden emphasized that his son had “overcome” his drug problems and “established a new life,” which a felony conviction obviously would disrupt. “I have great confidence in my son,” Biden said. “I love him, and he’s on the straight and narrow, and he has been for a couple of years now. And I’m just so proud of him.”
You might think that Hunter Biden’s violation of federal gun laws, which has been public knowledge for at least six months, would have given his father pause regarding the draconian penalties for such offenses. To the contrary, the president doubled down on that policy by signing the Bipartisan Safer Communities Act, and his administration is actively defending the ban that his son violated.
The federal prohibition of gun possession by unlawful users of controlled substances also applies to cannabis consumers, even if they live in states that allow medical or recreational use of marijuana. Form 4473, which has to be completed by anyone who buys a gun from a federally licensed dealer, emphasizes that point by warning that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
Last April, a month after Politico described a bizarre 2018 incident involving the .38-caliber revolver that Hunter Biden illegally owned, Florida Commissioner of Agriculture and Consumer Services Nikki Fried, a Democrat, sued the Biden administration, arguing that the federal ban on firearm possession by medical marijuana users violates the Second Amendment. The Justice Department responded by arguing that the ban is “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test established by the Supreme Court’s June 23 decision in New York State Rifle and Pistol Association v. Bruen.
“In England and in America from the colonial era through the 19th century,” the Justice Department noted, “governments regularly disarmed a variety of groups deemed dangerous.” For instance, “England disarmed Catholics in the 17th and 18th centuries,” and “many American colonies forbade providing Indians with firearms.” The government’s lawyers also mentioned the long history of banning firearm possession by people convicted of certain crimes and state gun laws aimed at “alcoholics” or “intoxicated” individuals. They argued that marijuana’s effects on “judgment, cognition, and physical coordination” make cannabis consumption inconsistent with responsible gun ownership.
When the Justice Department filed its motion to dismiss Fried’s lawsuit, Biden had already undermined its argument by saying that marijuana use should not be treated as a crime. He had also questioned marijuana’s status as a Schedule I substance, a category supposedly reserved for drugs with a high potential for abuse that have no accepted medical applications and cannot be used safely even under a doctor’s supervision.
Last week, Biden confirmed both of those positions. He issued a mass pardon for people convicted of simple marijuana possession under the Controlled Substances Act or the District of Columbia Code. And although Biden still has not come around to supporting the repeal of federal pot prohibition, he said “it makes no sense” to treat marijuana as a Schedule I drug. Accordingly, he instructed Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to “initiate the process of reviewing how marijuana is scheduled under federal law.” Yet the Biden administration still maintains that it’s appropriate to treat cannabis consumers who own guns as felons.
That position is hard to reconcile with what Biden has said about “our failed approach to marijuana.” And the president’s more general support for threatening gun-owning drug users with stiff prison terms is hard to reconcile with the more compassionate approach he surely would favor if his son were convicted of knowingly making a false statement “in connection with the acquisition or attempted acquisition of any firearm.”
David Weiss, the U.S. attorney for Delaware, has not yet decided whether to charge Hunter Biden with that crime, which is rarely prosecuted. “In the 2019 fiscal year, when Hunter Biden purchased his gun, federal prosecutors received 478 referrals for lying on Form 4473—and filed just 298 cases,” the Post reports. The paper compares those numbers to the “27 million background checks” conducted during that period, which is somewhat misleading. A more relevant question is how often a referral results in charges, which according to the Post happened 62 percent of the time in FY 2019.
There are many cases, however, where a false statement is discovered but does not lead to a criminal referral. A 2004 report from the Justice Department’s inspector general noted that gun buyers who failed background checks before completing their purchases were almost never prosecuted. The FBI blocked 122,000 gun sales in 2002 and 2003, which represented 0.7 percent of background checks. Only 154 of the would-be gun owners—0.1 percent—were prosecuted.
According to a 2016 report from the same office, prosecution rates were even lower in subsequent years. “These cases lack ‘jury appeal’ for various reasons,” the 2004 report noted. One of those reasons: “The factors prohibiting someone from possessing a firearm may have been nonviolent or committed many years ago.”
Even when prohibited persons were allowed to buy guns because the background check was not completed within three business days, recovering those firearms was not a high priority for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The 2004 report noted that there were often delays in retrieving weapons, partly because “ATF special agents did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly.”
Think about the implications of that observation. Congress has declared that letting certain classes of people own guns poses an intolerable threat to public safety. That threat supposedly is grave enough to justify felony charges and prison terms. Yet the agency charged with enforcing that edict “did not consider most of the prohibited persons who had obtained guns to be dangerous.”
Those prohibited persons include illegal drug users like Hunter Biden or medical marijuana patients in Florida; anyone convicted of a crime punishable by more than a year of incarceration, whether or not the offense involved violence and regardless of how long ago it was committed; anyone with a history of court-ordered psychiatric treatment, whether or not he was deemed a threat to others and regardless of how much time has elapsed; and anyone living in the United States without the government’s permission. It is no wonder that the ATF’s judgment of a gun buyer’s dangerousness frequently differs from the one embodied in federal law.
In addition to all the people who are caught lying on Form 4473, there are surely many cases where such lies go undetected, as initially happened with Hunter Biden. Unlike a criminal or psychiatric record, illegal drug use that does not result in an arrest—i.e., nearly all illegal drug use—would not turn up in a background check.
The fact that such gun laws are rarely enforced does not make them less unjust. To the contrary, haphazard enforcement means that a few people will face severe consequences for conduct that many others engage in with impunity. Millions of Americans are notionally forbidden to buy or possess guns, often for reasons that have nothing to do with violent tendencies. Only a tiny percentage of them will ever be prosecuted for daring to exercise their Second Amendment rights.
Hunter Biden might be one of them. If so, he will not deserve a prison sentence for actions that violated no one’s rights. But the same is true of many other defendants who run afoul of the arbitrary gun restrictions that his father supports.
Jacob Sullum
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