Gun Owners of America lawyer says Hunter Biden charged under unconstitutional laws.
Hunter Biden was indicted on three gun-related charges on Sept. 14. Second Amendment experts and President Joe Biden’s political rivals have little faith that, if convicted, Hunter Biden will serve any jail time.
“Do I think he’s going to be incarcerated? Do you?” asked William Kirk of the Seattle-based Cowan Kirk Law Firm and the Washington Gun Law YouTube channel host.
One attorney who spoke to The Epoch Times said Mr. Biden should not have been charged.
“This law is unconstitutional, and when your law is unconstitutional, you have no law at all,” Stephen Stamboulieh, an attorney with Gun Owners of America, told The Epoch Times.
Each charge carries a maximum penalty of 10 years and a $250,000 fine.
Mr. Kirk doubts that Mr. Biden would face any serious penalties if convicted. He pointed out that the government’s pursuit of the charges has been lackluster.
“There is no lying on a federal firearms form in the history of America that takes five years to investigate,” Mr. Kirk said.
Mr. Stamboulieh agreed. He added that a decision in the U.S. Court of Appeals for the Fifth Circuit last August could make it challenging to convict Mr. Biden of the third count.
In that case, United States v. Patrick Darnell Daniels, Jr., the defendant admitted to being a regular user of marijuana when being questioned by Drug Enforcement Agents. The agents, working with local police, had found marijuana and a 9mm pistol in Mr. Daniels’s car.
The appeals court decision reads, “Based on his admission, Daniels was charged with violating 18 USC § 922(g)(3), which makes it illegal for any person “who is an unlawful user of or addicted to any controlled substance … to … possess … any firearm.”
However, the court pointed out that Mr. Daniels was not charged with being under the influence at the time of his arrest. The court ruled that under the recent Supreme Court case, New York Rifle and Pistol Association v. Bruen, the law was unconstitutional as there was no history or tradition of laws barring people who used intoxicants from owning firearms at the time the Second Amendment was ratified.
“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,” the Appeals Court decision reads.
While Mr. Biden’s case is in a separate district, Mr. Stamboulieh said the Appeals Court decision could be used as a defense in Delaware. If the District Court in Delaware differed in its judgment, the U.S. Supreme Court could be called on to settle the matter, Mr. Stamboulieh said.
Mr. Kirk said the only real possibility of a conviction would come in the first two charges of lying on Form 4473, the federal background check form.
It’s Still a Felony to Lie
“It’s still a felony to lie on a federal firearms form,” Mr. Kirk said. “The crime is the actual lying.”
Both lawyers said Mr. Biden made those two charges challenging to defend when writing his autobiography.
“When you’re lying on the form, and you’re a drug addict, and then you write about it, it’s easier to charge you,” Mr. Stamboulieh said.
He said the only real defense would be to apply Bruen to all aspects of Mr. Biden’s case.
“If we talk about Bruen for intoxicants, we have to talk about Bruen for the form, and in 1791 [when the Second Amendment was ratified], there was no form,” Mr. Stamboulieh said.
He added that, regardless of its constitutionality, the law is clear that lying on Form 4473 is a felony. He and Mr. Kirk said the law should be applied evenly irrespective of the defendant. However, neither man is confident that will happen.
Mr. Kirk said the U.S. Justice Department has become too politicized.
“Until I actually see an equal application of the law under this Justice Department I don’t expect to see him incarcerated,” Mr. Kirk said. “That would show me that there’s an equal application of justice.
Mr. Stamboulieh agreed.
“As long as this is the law, I would expect the laws to be applied equally, but they’re not,” he said.
Not surprisingly, Democrats and Republicans are split on the prospect of the law being applied evenly.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) told The Epoch Times the indictments show that the justice system is working, regardless of what President Biden’s political opponents may say.
“I think that this shows that we have a judicial system that is treating people equally,” she said. “I think folks may want to politicize it, but if anything, an indictment is a demonstration that our judicial process is proceeding under its current structures.”
Rep. James Comer (R-Ky.) shrugged off the indictment. He pointed out that the Bidens have been accused of several crimes that would implicate the president in wrongdoing. He said those are the charges that should be filed.
“You’ve never heard me say anything about gun charges. So, again, that’s the one crime [Hunter Biden has] committed that you cannot tie to Joe Biden,” Mr. Comer said.