On September 14, 2023, Special Counsel David Weiss of the Department of Justice filed an indictment against Robert Hunter Biden in the District of Delaware. The indictment pleads three counts, which I analyze below. The Hunter Biden indictment centers on issues I’ve analyzed in many posts this year (see links at the bottom). Today I want to talk about what Hunter Biden’s indictment could mean for cannabis users.
Controlled substances users can’t buy or own guns
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requires firearm purchasers to complete a form named ATF 4773, which requires the applicant to respond “yes” or “no” to the following question:
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?
Warning: 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.
If an applicant answers “yes” to this question, their application will be denied. If they are in fact a marijuana user – even someone who uses medical or recreational marijuana in a state where it is fully legal – but answer no, they can be charged with a crime. So in sum, the federal government believes that even state-legal cannabis users should be stripped of their Second Amendment rights.
Finally, here I wrote:
A 2022 U.S. Supreme Court case, New York State Rifle & Pistol Association, Inc. v. Bruen, held that the test for determining whether a gun control law is constitutional is (1) whether the affected person has Second Amendment rights, and (2) whether the restriction is “consistent with the Nation’s historical tradition of firearm regulation.”
All or virtually all courts that have dealt with the federal cannabis gun control law agree that cannabis users have Second Amendment rights. And nearly all courts agree that the federal cannabis restriction is not “consistent with the Nation’s historical tradition of firearm regulation.”
What the Hunter Biden indictment for cannabis users
Now let’s turn to Hunter Biden’s indictment and how it could affect cannabis users. The indictment relates to his completion of the ATF 4773. The counts are:
- Allegedly making a false statement on ATF 4773 that he was not an unlawful user or addicted to a controlled substance;
- Allegedly making a false statement to the federal firearms license (FFL) holder who apparently sold him a pistol that he was not an unlawful user or addicted to a controlled substance; and
- Allegedly possessing a firearm while he was not an unlawful user or addicted to a controlled substance.
It bears noting that Hunter Biden’s alleged addiction was not to cannabis, but to crack cocaine. That said, the ATF 4773 makes no distinction between crack cocaine, cannabis, or any other controlled substances. So the analysis is similar. And that means, both for him and for cannabis users, that there seems to be a decent chance of prevailing on at least some of the charges.
As I’ve noted in many of my posts linked below, federal courts keep ruling that the federal laws restricting gun rights for cannabis users are unconstitutional. If struck down, either by Hunter Biden or in a challenge brought by cannabis users, would likely mean that the government would not prevail on the final charge against Hunter Biden (possession while an unlawful user).
But what about the false statement charges? That is much different. As I noted months ago, “Even if federal courts completely do away with restrictions on marijuana users’ gun rights, that won’t affect the potential for federal charges for making misrepresentations on the ATF 4473.” In other words, if a person makes a false statement NOW or in the past on the ATF 4773, it may be fair game for prosecutors to prosecute those charges even after changes in law. That’s because false representations are different from possession. And there doesn’t seem to be any push to change those requirements.
Federal laws on controlled substance users and guns are likely unconstitutional
In my view, cannabis users are likely to prevail, and these laws are likely to be held unconstitutional, in the coming years. The indictment of Hunter Biden may speed that process up and he will undoubtedly attack the constitutionality of those same laws in Delaware. Only time will tell, so please stay tuned to the Canna Law Blog for more updates.
To see my related posts: