Opinion by Robert J. Spitzer
(CNN) — President Joe Biden’s son, Hunter Biden, on Thursday, became the first child of a US commander-in-chief to be indicted. Special counsel David Weiss charged Hunter Biden with two counts of lying when filling out a form for a federal handgun permit and one count of illegally possessing a gun on account of owning a gun after having lied on said form.
The lie was denying that he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.” At the time Hunter Biden completed the form in 2018, he was, as he later admitted in his published memoir, addicted to crack cocaine. Lying on the form is a felony under federal law punishable by up to 15 years in prison and up to a $250,000 fine.
Two political realities hang over this matter: that such violations are rarely prosecuted, and that this case is newsworthy only because the man in question is the president’s son.
“False gun applications sadly … almost never get prosecuted or jail time,” former FBI general counsel Andrew Weissmann tweeted soon after the news broke. “So this is if anything harsh, not lenient.”
According to a 2018 Government Accountability Office (GAO) investigation, in 2017 there were around 112,000 denied firearms transactions (these involved “aggravating circumstances,” of which lying about drug use can be one such circumstance). Only 12,700 were referred for further investigation, and of those, a mere 12 were prosecuted as of June 2018.
In fiscal year 2019, federal prosecutors filed charges against those who lied on permit application Form 4473 in 298 instances out of 478 referrals. (We don’t know the nature of the lies, but it’s safe to assume drug use represented a chunk of them.) About 27 million background checks were conducted that fiscal year.
This data backs the claim of Hunter Biden’s lawyers, who charge that he is being singled out for prosecution because his last name is Biden.
This contention is further strengthened by the fact that Hunter Biden had originally entered into a plea deal that would have paved the way to resolving the gun charges without prison time, until a judge who called the deal “confusing,” “not straightforward,” “atypical” and “unprecedented” voided it in the face of GOP criticism that it was too lenient.
Plea deals are what normally occur in these cases, as the GAO reports, noting, “prosecuting denial cases can require significant effort and may offer little value to public safety compared to other cases involving gun violence.” However, having those deals voided by a judge is not normal at all.
Biden attorney Abbe Lowell told CNN on Thursday night that the indictment “violates the agreement the government made with Hunter Biden” and that, “There will never have been a charge like this brought in the United States.”
So in some ways, it’s problematic that Biden has been singled out for harsh treatment. It’s nearly impossible to imagine a similar turn of events had Hunter Biden not been a Biden.
On the other hand, it would be a mistake to assume that the lack of prosecutions means that nothing serious occurred when Hunter Biden allegedly lied on his application form. The proper remedy is for the authorities to be more aggressive in cracking down on drug users who get guns.
When celebrities and public personalities become enmeshed in the legal system, it provides a chance to ask about the wisdom of the laws, and actions, in question. Right now, two legal movements are occurring: gun laws are being rolled back, thanks primarily to the Supreme Court’s recent expansion of gun rights, and drug laws are being dismantled, thanks primarily to state referenda legalizing controlled substances. The result of the two movements together could be incredibly dangerous when we consider the violence that can result from the combination of guns and controlled substances.
As it happens, the very law Hunter Biden is accused of violating might be on shaky legal grounds. In August, a federal appeals court in Louisiana struck down the law on the grounds that it violated the Second Amendment.
“Our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage,” Circuit Judge Jerry Smith wrote. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
But that interpretation isn’t correct — in fact, historically, Americans have been very clear that intoxicating substances and guns don’t mix, and while Smith’s ruling nods to that, the result of his decision is to erode all limits. Furthermore, the separation between guns and controlled substances is only more urgent given the proliferation of access to both.
This startling court opinion may not ultimately prevail, but it was possible only because the Supreme Court opened the door to expansive new gun rights litigation last year in its ruling in the Bruen case.
That controversial decision redefined the criteria for judging the constitutionality of current gun laws, finding that they are only valid when they are “consistent with this Nation’s historical tradition of firearm regulation.” A current law need not be a “dead ringer” for old laws, but it should be similar or “analogous,” the court said.
Since the history of punishing drug abuse is relatively recent — up until the early 20th century, drug use in the US was “largely a private matter” beyond government regulation — the relevant analogy is old laws relating to alcohol. My research on historical gun laws reveals that, from the 1600s through the early 1900s, at least 30 colonies or states regulated, restricted and punished inebriation in connection with the ownership or use of weapons.
These regulations included at least 20 states that criminalized the carrying or use of firearms when intoxicated. At least 15 states regulated the commercial sale or distribution of alcohol when firearms were also present; at least two states barred gun sales to those who were intoxicated; at least six states enacted laws prohibiting drunkenness in connection with militia activity.
For example, in 1636, the colony of Rhode Island law punished any who would engage in “shooting out any gun … drinking in any tavern alehouse.” Any who did would find themselves in the stocks or fined five shillings. A 1750 Pennsylvania law punished any innkeeper or “strong liquor” seller who promoted “shooting matches” related to “drunkenness” with a heavy fine. The Tennessee legislature granted a locality the authority to penalize “shooting and carrying guns” along with drinking in 1825.
Moreover, my research has found that numerous old laws restricted firearms from an array of people who were generally considered suspicious or of dubious reliability, including vagrants, tramps, foreigners, those of inappropriate moral rectitude and even those who violated hunting regulations.
When guns enter the picture, substance abuse — whether alcohol or drugs — is no less serious a public policy problem now than it was hundreds of years ago. The intersection of drug penalty decriminalization and expanded gun rights spells nothing but trouble.
Those who struggle with any addiction need help, not prison terms. But substance abuse is highly correlated with threatening others with guns, and around a third of gun homicide perpetrators drank heavily before they committed murder. Judging by old gun and intoxication laws, our ancestors well understood that.
Questions about substance use on gun permit forms are a necessary guardrail. It’s wrong that Biden is being punished for a crime others haven’t been. But that doesn’t mean the law is wrong. Our lax attitude toward guns is to blame, and safeguards such as permit questionnaires are increasingly needed as other checks on dangerous behavior are eroded.
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