After Monday’s oral arguments in U.S. v. Hemani, the consensus seems to be that the Court will rule in favor of Ali Danial Hemani and against the government’s position that “habitual” marijuana users can be prohibited from possessing firearms under Section 922(g)(3), which bars “unlawful” drug users from gun ownership.
That’s the same law, you might recall, that was used to convict Hunter Biden for possessing a firearm while he was actively using and abusing crack cocaine. Biden was also convicted of lying about his drug use on the Form 4473 he filled out when purchasing a revolver, but both convictions were set aside after his dad issued him a full pardon shortly before leaving office.
While the younger Biden was spared prison time thanks to daddy’s intervention, he still lost his law license as a result of the convictions. Now the New York Times reports that Hunter is hoping the Hemani case will throw him a lifeline and allow him to once again become a licensed attorney.
“It would be a small step in getting back some of what I lost,” Mr. Biden told The New York Times, adding that he had been watching the case closely.
Mr. Biden said he thought the court should clarify the law. Few people, he said, were aware of the statute and its consequences, which he said required the government to determine a gun owner’s state of mind and conclude whether he or she was “addicted” to drugs.
“Who knows who is technically an addict at any given time?” he asked. “If it stands as it is, it means tens of millions Americans who regularly use marijuana could be technically prosecuted.”
No, the government isn’t required to determine whether someone is an addict in order for 922(g)(3) to apply. That’s one way that the statute can be used, but the other way is by determining someone was an “unlawful” user of drugs at the time they purchased and/or possessed a firearm. That’s how the government was able to secure a conviction against Hemani. He admitted to using marijuana about every other day, which was enough for the government to declare that “habitual use.”
The DOJ maintains that occasional and irregular drug use doesn’t fall under the “unlawful” language off 922(g)(3), but regular or habitual use does. Biden’s regular use and abuse of crack cocaine would qualify, even without the government proving his addiction (though his repeated trips to rehab and his own statements calling himself an addict would certainly help the government’s case).
If SCOTUS rules in Hemani’s favor, I don’t expect the justices to declare 922(g)(3) completely null and void (though it is possible that a majority could conclude it’s facially unconstitutional because of its vagueness). Instead, I think they’ll issue a fairly narrow decision protecting Hemani and other marijuana users from federal prosecution under 922(g)(3) absent any evidence that their drug use makes their gun ownership especially dangerous.
What about Hunter’s drug of choice or other narcotics? The Court doesn’t have to decide anything about those drugs, but if the justices do decide to offer some guidelines to lower courts they have a couple of options. They could instruct judges to consider, as with marijuana, any evidence that the drug use makes the gun owner particularly dangerous. They could also ask judges to consider whether the drugs themselves make any and all gun owners dangerous enough to bar them from exercising their Second Amendment rights.
“If they strike down the law altogether, I can still go back — given the fact that I’ve been given a pardon — and try to get relief,” Mr. Biden said in the interview.
Mr. Biden, now the development director for BASTA, a tenants rights nonprofit that represents renters in Southern California, said a broad ruling could potentially allow him to file what is known as a writ of coram nobis, a rarely used legal mechanism meant to correct errors after a final conviction.
“I’d have to assess the realistic chances of winning,” Mr. Biden said, adding that he would also need to figure out whether he could afford such a legal challenge or find a lawyer to assist.
Again, it’s possible that the Court could strike down 922(g)(3), but I doubt there’s enough support to do that. And even if the Court does go big in Hemani and wipes the law from statute, Hunter Biden was also convicted of lying about his drug use on the ATF paperwork he filled out to purchase his firearm. That law isn’t being challenged in Hemani, and I don’t see how any writ of coram nobis would spare him disbarment for that crime and conviction.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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