NRA-ILA routinely points out that it is more informative to watch anti-gun politicians and officials’ behavior than to listen to the platitudes they spew about enacting gun control to protect the public. This is often made manifest when officials in jurisdictions with burdensome gun control laws fail to vigorously enforce their onerous rules against dangerous criminals. The obvious takeaway for a rational individual is that the gun control measures these politicians advocate aren’t about improving public safety, but rather are designed to diminish the Second Amendment right and burden law-abiding gun owners.
In a similar vein, it would be hard to concoct a more instructive episode than the Hunter Biden firearm prosecution saga. Boastful anti-gun President Joe Biden’s pardon of his son Hunter’s federal gun convictions has made a complete mockery of the cornerstones of the federal gun control regime the president ceaselessly champions.
Background
On June 11, Hunter was convicted in federal court of three felonies stemming from an October 2018 firearm purchase. A Department of Justice press release explained at the time,
Biden knowingly made a false written statement on the ATF Form 4473 when he certified that he was not an unlawful user of, or addicted to, any stimulant, narcotic drug or any other controlled substance. In fact, he knew that statement was false. Evidence at trial further proved that Biden knowingly made a false statement and representation to a federally licensed firearms dealer with respect to information the dealer is required to keep under federal law. Lastly, during an 11-day period between Oct. 12 and Oct. 23, 2018, Biden possessed a firearm while knowing he was an unlawful user of or addicted to any stimulant, narcotic drug or any other controlled substance, in violation of federal law.
Federal law (18 USC § 922(g)(3)) prohibits the possession of firearms by anyone “who is an unlawful user of or addicted to any controlled substance.” Hunter has a lengthy history of illegal drug use that he has admitted and documented (including in his own autobiography).
When purchasing a firearm from a Federal Firearms Licensee (FFL or gun dealer), prospective purchasers are required to fill out an ATF Form 4473 to assist in conducting a National Instant Criminal Background Check System (NICS) background check and for the FFL’s record keeping. This form asks the buyer whether they meet any of the categories of individuals that are prohibited from possessing firearms. Providing false information on the Form 4473 and to the FFL are felonies.
Before and after Hunter’s conviction, Biden repeatedly told the American public that he would not pardon his son. Moreover, Biden had White House Press Secretary Karine Jean-Pierre deny that he would pardon Hunter on numerous occasions.
Nevertheless, reporting from NBC News now suggests that a potential pardon had been in the works since at least June. A December 1 article from the outlet stated,
The president has discussed pardoning his son with some of his closest aides at least since Hunter Biden’s conviction in June, said two people with direct knowledge of the discussions about the matter. They said it was decided at the time that he would publicly say he would not pardon his son even though doing so remained on the table.
As recently as November, Jean-Pierre told reporters that a pardon would not be forthcoming.
The pardon came on December 1.
In a statement accompanying the pardon, Biden alleged that his own Justice Department had targeted his son unfairly. The president noted, “Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form.”
Allegations of unfairness aside, this is true (although prohibited possessor prosecutions, the broad heading under which another of the convictions occurred, are among the most common of federal gun charges). But the fact that Biden is right about prosecutions for falsifying transfer records raises obvious questions.
From his statement, Biden appeared to suggest that it is not important to prosecute those who are guilty of victimless crimes resulting from running afoul of federal gun control statutes. That isn’t an unreasonable take, but it is a bizarre one for a politician who has spent his career erecting and fortifying an entire gun control regime that targets victimless conduct.
The prosecutorial indifference exhibited in cases like Hunter’s is an example of how the federal gun control regime works. An expanding web of statutes, regulations, and enforcement policies make it harder and harder for conscientious, law-abiding Americans to exercise their Second Amendment rights, while those who brazenly violate the law often go unpunished.
If the most anti-gun president in modern American history believes that victimless federal gun crimes don’t warrant vigorous prosecution, what is the point of making decent law-abiding Americans comply with the onerous and ridiculous federal gun control scheme? That is, other than to burden Constitutionally-protected conduct.
Consider how the Hunter gun affair and the president’s response to it denigrate three pillars of the federal gun control regime.
Background Checks
Since late 2012, much of the gun control debate has centered around so-called “universal” background checks, better understood as the criminalization of private firearm transfers. Under current law, Federal Firearm Licensees (FFLs or gun dealers) are required to conduct a National Instant Criminal Background Check System (NICS) background check on prospective firearm buyers. Purchasers are required to fill out an ATF Form 4473 to assist in conducting the background check. The gun dealer must retain the Form 4473 in their records. Gun control advocates, including those in the Biden administration, want to extend this background check procedure to firearm transfers between private individuals.
President Barack Obama put then-Vice President Biden in charge of enacting an expanded background check bill in 2012. The American people rejected that Obama-Biden gun control bill through their elected representatives. In 2020, Biden ran on enacting so-called “universal” background checks. In 2024, the Biden administration perverted federal law in an attempt to subject more firearm transfers to the federal background check regime.
Hunter purchased his firearm at a Delaware gun dealer. ATF Form 4473 asks firearm purchasers whether they are an unlawful user of a controlled substance. Hunter undermined gun control advocates’ beloved federal background check scheme by lying about his drug use, no doubt counting on the fact that NICS would not have records of this misbehavior because he had never been arrested for or convicted of it.
Biden and his gun control allies want to prohibit law-abiding citizens from transferring firearms among themselves without federal government interference. However, when his son lied to evade this purportedly important public safety policy, he got off. This sort of thing could give more than just cynics the impression that the primary purpose of background checks is to burden and harass people gun controllers don’t like (law-abiding gun owners).
Prohibited Persons
Another pillar of the federal gun control regime is the concept of prohibited persons. 18 USC § 922(g) prohibits firearm possession by certain broad categories of individuals, such as felons, fugitives, illegal aliens, and any person “who is an unlawful user of or addicted to any controlled substance.”
There are strong arguments that some of these categories are overbroad in that they encompass individuals who have not demonstrated any dangerous tendencies whatsoever.
For instance, the firearm prohibition for felons includes those convicted of almost all nonviolent felonies. To illustrate the issue, a 2019 case from the U.S. Court of Appeals for the Seventh Circuit, Kanter v. Barr, involved the Second Amendment rights of an individual with a felony mail fraud conviction stemming from the almost comically nonviolent crime of selling Medicare non-compliant therapeutic shoe inserts.
With his pardon and the accompanying statement, Biden appeared to suggest that at least some individuals guilty of violating the 18 USC § 922(g)(3) firearm prohibition for illegal drug users shouldn’t have to face the consequences of their actions.
To be clear, gun rights advocates, civil libertarians, and constitutionalists have several principled and cogent arguments against the 18 USC § 922(g)(3) prohibition.
As a policy matter, one view may be that the prohibition is too broad. For instance, marijuana is still a controlled substance under federal law but has been legalized for medical and recreational use in dozens of states and its sale is tolerated by the federal government. The question up for debate is if it’s wise policy for a person to lose their Second Amendment rights for using marijuana in compliance with state law, perhaps under the supervision of a doctor.
In New York State Rifle & Pistol Association v. Bruen (2022) the U.S. Supreme Court made clear that for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. Specifically, the opinion noted,
[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.
This precedent calls into question the validity of the broad 18 USC § 922(g)(3) prohibition. In August, the Fifth Circuit ruled, “our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon… but they do not support disarming a sober person based solely on past substance usage.”
More ambitious gun rights advocates may point to another Constitutional issue. All the 18 USC 922(g) federal firearms prohibitions rely on an expansive interpretation of the Constitution’s Commerce Clause. There is a colorable, if at this point largely academic, argument to be made that the federal government is not authorized to regulate firearm possession in this manner and that any such prohibitions are the purview of the states.
Of course, Biden and his defenders and anti-gun allies don’t accept any such arguments. In fact, the Biden administration doubled-down on the 18 USC § 922(g)(3) prohibition.
In 2022, Biden signed the Bipartisan Safer Communities Act. That ill-named gun control bill increased the maximum penalty for violating the 18 USC § 922(g)(3) prohibition from 10 to 15 years imprisonment.
If the 18 USC § 922(g)(3) is too broad, at least as it pertains to the president’s son, perhaps a wholesale reexamination of the 18 USC § 922(g) categories, with a focus on actual dangerousness, is in order.
FFL Recordkeeping Requirements
The Gun Control Act of 1968 imposed significant recordkeeping requirements on FFLs. Federal law requires those who purchase a firearm at a gun dealer to fill out Form 4473. This record of the firearm transfer is then stored by the gun dealer on their premises. When a dealer discontinues their license, they are required to submit their firearm transaction records to the ATF’s National Tracing Center. This scheme is supposed to create a system whereby if a gun is found at a crime scene ATF can trace the firearm to the last retail purchase.
The Biden administration has claimed that this recordkeeping regime is important. ATF Director Steven Dettelbach complained to the press about limitations preventing this scheme from becoming a national gun registry. ATF rule 2021R-05F, finalized in 2022, extended the time period which FFLs must maintain firearm transaction records from 20 years to in perpetuity. The Biden administration launched a so-called “zero tolerance” war on FFLs, whereby gun dealers could be targeted for license revocation for minor recordkeeping errors.
Early reporting on the Hunter firearm incident suggested that someone attempted to manipulate the records of the FFL where the president’s son purchased his firearm.
According to a March 25, 2021, Politico article titled “Sources: Secret Service inserted itself into case of Hunter Biden’s gun,” on October 23, 2018, Hallie Biden, widow to Joe’s son Beau and then-companion to Hunter, searched Hunter’s truck, which was parked at her home in Wilmington, Del., and found his firearm. Seeking to dispose of the gun, Hallie wrapped the revolver in a shopping bag and threw it into a trash receptacle outside nearby gourmet grocery store Janssen’s Market.
When Hallie told Hunter what she had done, Hunter told her to go back to the market and recover the gun. However, by the time Hallie returned to the store the firearm was gone. After Hallie alerted Janssen’s to what she had done, the store’s manager contacted law enforcement.
What ensued next was a situation that allegedly involved no less than the Delaware State Police, the U.S. Secret Service, and the Federal Bureau of Investigation. In the end, the firearm was recovered by a man searching Janssen’s Market’s trash for recyclables and returned a few days later.
The Politico item stated,
Secret Service agents approached the owner of the store where Hunter bought the gun and asked to take the paperwork involving the sale, according to two people, one of whom has firsthand knowledge of the episode and the other was briefed by a Secret Service agent after the fact.
The gun store owner refused to supply the paperwork, suspecting that the Secret Service officers wanted to hide Hunter’s ownership of the missing gun in case it were to be involved in a crime, the two people said. The owner, Ron Palmieri, later turned over the papers to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, which oversees federal gun laws.
With Biden and his ATF focusing so much energy on accurate gun dealer record retention, one might expect the government to be concerned with whether there are federal agents attempting to subvert statutorily required FFL records on behalf of the politically powerful or connected. That is, unless this focus on FFL records were merely a pretext to shut down well-meaning gun dealers to make it harder for Americans to exercise their Second Amendment rights.
To their credit, U.S. Senators Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.) pursued the allegations of federal agency involvement in the Hunter firearm incident. However, in 2022, Sen. Johnson acknowledged “I have not gotten a satisfactory response from these agencies.”
The Hunter case, along with an everyday indifference to violent crime, make clear that anti-gun politicians and officials are willing to look the other way when dangerous criminals or their political allies violate the gun control laws the anti-gunners fervently profess to support. So don’t take any of their public safety bloviating at face value; and understand that their gun control measures are aimed at YOU!
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