Without the diversion agreement, [Special Counsel David] Weiss is free to prosecute [Hunter] Biden on the gun charge as well as the tax charges. That will raise a constitutional issue, since the gun charge is based on a statute that arbitrarily strips peaceful Americans of their Second Amendment rights based on their choice of politically disfavored intoxicants. That prohibition applies not only to crack users like Biden but also to cannabis consumers, regardless of whether they live in states that have legalized marijuana.
Two federal judges have concluded that the gun law Biden violated is inconsistent with “this Nation’s historical tradition of firearm regulation”—the constitutional test that the Supreme Court established last year in New York State Rifle and Pistol Association v. Bruen. Last week, the U.S. Court of Appeals for the 5th Circuit agreed with that assessment, overturning the conviction of a Mississippi man who was caught with two guns and the remains of several joints during a routine traffic stop in April 2022.
The defendant in that case, Patrick Darnell Daniels Jr., received a prison sentence of nearly four years. Under Biden’s proposed diversion agreement, by contrast, he would have avoided any sentence at all.
Those starkly unequal outcomes reinforce the impression that Biden got a “sweetheart deal” because he is the president’s son. But they also illustrate the wildly uneven application of this rarely enforced statute. Although the potential defendants include millions of gun-owning drug users, violators are almost never caught. And if they are unlucky enough to be prosecuted, their punishment can range from a slap on the wrist to years behind bars.
Whether or not Biden benefited from his father’s position when the Justice Department initially agreed to forgo prosecution on the firearm charge, he now faces a potential prison sentence because of a law his father views as a commonsensical restriction on gun ownership. Although Joe Biden says marijuana use should not be treated as a crime, his administration insists that marijuana users are so dangerous that they cannot be trusted with guns. And last year, the president signed a bill that increased the maximum penalty for his son’s crime while adding yet another potential felony charge for people who do what he did.
If the government pursues the gun charge against Hunter Biden, his lawyers reportedly told the Justice Department before his plea deal was announced, they will challenge the prosecution on Second Amendment grounds. That development would create an instructive clash between father and son, underlining the irrationality and injustice of a policy that the president stubbornly defends.