Against urgent calls for reform in the wake of daily mass shootings, Republican officials and the gun rights groups supporting them have instead steadily pushed for increasing Americans’ access to firearms.
The number of states allowing Americans to carry concealed firearms without a permit – a top priority for gun groups – has increased dramatically in recent years, with more than half of US states passing laws to expand that access within just the last decade alone.
Those GOP-supporting gun groups and the lawmakers who usher their proposals into law will now endure challenges to gun restrictions for the sake of a political “victory” against the Democratic president.
After a grand jury indicted Hunter Biden on three charges stemming from the purchase of a firearm in 2018, charges that Second Amendment experts and legal analysts believe could be tossed out in court or face constitutional challenges, gun groups appear reluctant to take up his defence.
And because Joe Biden’s son is charged under a federal law that prohibits people who use drugs from buying firearms, the response to the indictment from gun activists underscores the fact that gun groups believe at least one group of people should face the restrictions they otherwise spend millions of dollars and countless lobbying hours opposing: drug users.
Gun Owners of America, which bills itself as the “only no compromise gun lobby” in the nation’s capital, celebrated Hunter Biden’s indictment with a hand clapping emoji on X, formerly Twitter.
“Good!” the group wrote. “If his father wants to work with us to repeal unconstitutional gun control, our lobbyists will be at the White House in an hour. Until then, Hunter shouldn’t get any sweetheart deal!”
The younger Biden is facing three charges stemming from his 11-day possession of a handgun he allegedly obtained in a time period in which he admitted to using drugs. Two of the charges are connected to his alleged lie on a federal form required for the sale of the gun, and the other charge relates to possession of the weapon while under the influence of drugs.
Prosecutions for lying on that application are exceedingly rare, and the third charge is typically connected with other more serious crimes, not as a standalone charge, which former prosecutors told The Independent is extremely unusual if not unprecedented. Hunter Biden did not use the gun and had no prior criminal record.
“Gun Owners of America opposes all gun control, but so long as this President continues to use every tool at his disposal to harass and criminalize guns, gun owners and gun dealers, his son should be receiving the same treatment and scrutiny as all of us,” Erich Pratt, senior vice president for the organisation, said in a statement.
A brief statement from a spokesperson for the National Rifle Association, the nation’s largest gun rights advocacy group, simply said that “laws should be applied equally against all criminals.”
The organisation has argued for exceptions for people who use drugs from its broad support for Second Amendment rights, with current CEO Wayne LaPierre stressing in a recent column that “it is a federal felony” for both convicted felons as well as “known drug users” to possess firearms.
The Gun Control Act of 1968 makes it a crime for any “unlawful user” to possess or “receive any firearm or ammunition.” But the US Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v Bruen argues that any firearms restriction must “demonstrate that the regulation is consistent with the Nation’s historical tradition.”
It’s an enormously high bar for state and federal laws to overcome to test the constitutionality of restrictions as governments respond to a gun violence crisis and the explosion of high-powered firearms across the country. And it’s one overwhelmingly welcomed by gun groups as a major achievement of their lobbying efforts.
But the ruling could throw restrictions like the ones surrounding Hunter Biden’s case into doubt. Within the year after the Bruen decision, federal judges in several cases have ruled that banning someone who uses drugs from owning a firearm is “inconsistent with the Nation’s historical tradition of firearm regulation.”
“In short, 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,” Ronald Reagan-appointed US District Judge Jerry Smith wrote for a federal appeal courts panel in August. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
Oklahoma US District Judge Patrick Wyrick ruled in February that laws cited by the government “took a scalpel to the right of armed self-defense” while federal law “takes a sledgehammer” to it.
In June, a federal appeals court ruled that government attorneys failed to point to any laws from the nation’s founding that establish a tradition of disarming non-violent criminals.
Following a potential plea deal for Hunter Biden this summer, the NRA’s lobbying arm, the Institute for Legislative Action, blasted the case as “evidence that gun control laws are about exercising political control and suppressing constitutional rights, rather than protecting the public from criminals.”
“Indeed, if ever there was an exemplary case to justify the firearm prohibition as it pertains to unlawful drug users or addicts, it would seem to have been Hunter Biden,” according to a post on the group’s website in June.
“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,” the post added.
Hunter Biden’s plea deal collapsed, and a grand jury indictment subsequently returned the three counts against him. His arraignment is scheduled for 3 October. He intends to plead not guilty.
GOP lawmakers who previously criticised the Biden administration’s gun reform measures and celebrated the Bruen decision have also welcomed the indictment. Republican US Rep James Comer, a member of the Congressional Second Amendment Caucus who is leading efforts to investigate the Biden family, described the charges as “a very small start”.
Republicans characterised an earlier plea agreement as a “sweetheart deal,” but former prosecutors and legal experts told The Independent that the charges are exceptionally punitive compared to similar cases, and that the previous plea arrangement was much closer to how these cases are typically handled. Of the 6,459 people sentenced in the US for illegal gun possession in 2021, only 5 per cent were charged for their drug use, according to the US Sentencing Commission.
Within the fiscal year that Hunter Biden bought the gun and filled out that paperwork, federal prosecutors received 478 referrals for charges stemming from lying on the form – and filed cases in roughly half of them.
Following the indictment, Hunter Biden’s attorney Abbe Lowell said he believed the charges “are barred by … the recent rulings by several federal courts that this statute is unconstitutional, and the facts that he did not violate that law, and we plan to demonstrate all of that in court.”
Far-right US Rep Matt Gaetz, who supports a national concealed-carry law and said Americans have an “obligation” to “use” their Second Amendment rights for “armed rebellion”, didn’t quiet know to react to the possibility that Hunter Biden’s case could be a Second Amendment test.
“How are we supposed to feel if US v Hunter Biden goes all the way to the Supreme Court and becomes a landmark pro [Second] Amendment decision, deeming large swaths of gun control screening or ‘background check’ questions unconstitutional?” he wrote.
“Will we be cheering Hunter? Will the left all of a sudden accuse him of funneling bribes to Joe?” he added. “Strange times may be ahead, man.”
