Hunter Biden plea deal illustrates America's gun control regime

Just in case anyone needed further evidence that gun control laws are about exercising political control and suppressing constitutional rights, rather than protecting the public from criminals, Joe Biden’s Department of Justice has provided them with unmistakable proof. On June 20, the U.S. Attorney’s Office (USAO) for the District of Delaware submitted paperwork outlining a plea deal for the president’s son, Hunter Biden. Under the terms of the agreement, Hunter would avoid a conviction for possessing a firearm while being an “unlawful user of or addicted to any controlled substance” if he completes a pretrial diversion program.

The USAO document only made mention of one charge of Hunter violating 18 U.S.C. 922(g)(3), which concerns prohibited persons in possession of a firearm. This crime is punishable by up to 10 years imprisonment. Yet there were at least two other felony charges potentially implicated by the situation.

On March 25, 2021, in relation to Hunter’s alleged illegal acquisition of a firearm, Politico reported that the outlet had “obtained copies of the Firearms Transaction Record and a receipt for the gun dated Oct. 12, 2018” and that:

Hunter responded “no” to a question on the transaction record that asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

Lying on the form prospective purchasers fill out pursuant to purchasing a firearm from a gun dealer (ATF Form 4473) is two separate crimes. It is a crime when a person “knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter,” such as the 4473. A violation of this provision is punishable by up to 5 years imprisonment. It is also a crime for a person to “make any false or fictitious oral or written statement” to a dealer “with respect to any fact material to the lawfulness of the sale.” A violation of this provision is punishable by up to 10 years imprisonment. The Form 4473 from Hunter Biden’s handgun purchase would seem to provide damning proof of both violations.

Those on the conservative side of the political aisle have been quick to criticize the Biden DOJ’s lenient treatment of Hunter. The frustration is understandable. In a world where some on the political left have weaponized the federal government to pursue their political enemies, citizens are justified in wondering how a prominent conservative or libertarian might have been treated in similar circumstances.

Moreover, such leniency gets the president out of a political jam. Pardoning his son, had Hunter faced a felony conviction and prison time, could have caused Joe Biden a great deal of embarrassment, especially given the elder Biden’s professed “zero tolerance” for gun industry indiscretions. If Hunter had raised what is a serious Second Amendment challenge to the prohibited person category under which he faced charges, as was floated by his attorneys, it would have caused his dad even more political headaches. The Biden DOJ has adamantly defended the “unlawful user of or addicted to any controlled substance” firearm prohibition, going so far as having the ATF reiterate in May that those who use marijuana in conformity with state law still cannot possess firearms. Surely the Justice Department would (normally) defend its prerogatives under the prohibition even more strongly in the case of someone who, like Hunter Biden, was abusing crack cocaine while in possession of a firearm.

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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. Media reports indicate his own girlfriend (who also happened to be his brother’s widow) was so concerned about his volatile, erratic, and potentially dangerous behavior while on drugs, that she herself sought to rid him of his illegally possessed handgun.

Yet the prosecutorial indifference exhibited in the Hunter gun case is just a higher profile example of how the federal gun control regime works. 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. In either case, those in authority hold all the cards, picking winners and losers under the regime as it suits them and their political agenda.

Economics has a concept called “revealed preference.” The gist is that a person’s observed actions reveal more about their preferences than what a person might profess to prefer. As applied to anti-gun politicians, despite all the noise they might make about “public safety,” their actions reveal that their policies are designed to attack the rights of their political opponents – even (and especially) the law-abiding – while shielding allies and supporters.

In 2018, the U.S. Government Accountability Office published a report titled, “Few Individuals Denied Firearms Purchases Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions.” The document studied the lack of prosecutions of prohibited persons who attempted to obtain firearms but were denied by the FBI’s National Instant Criminal Background Check System (NICS) after filling out the required 4473.

The GAO report stated:

Federal NICS checks resulted in about 112,000 denied transactions in fiscal year 2017, of which the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) referred about 12,700 to its field divisions for further investigation. U.S. Attorney’s Offices (USAO) had prosecuted 12 of these cases as of June 2018.

To be sure, the NICS isn’t perfect. Being denied by the NICS system does not automatically mean that an individual is in fact prohibited from possessing firearms, and there is a sizeable number of improper denials each year. Moreover, given the array of nonviolent crimes that could result in a firearms prohibition, it would not be wise to prosecute every single firearms denial.

Nevertheless, the magnitude of unprosecuted violations for lying on a 4473 goes well beyond sensible prosecutorial discretion. When, all else being equal, there is a 1 in 10,000 chance of being prosecuted for a crime in which the perpetrator necessarily offers himself up to the government and provides documentary proof of the offense, a deliberate choice is being made. And that choice proves the “public safety” rationale for gun control is not the decisive factor.

This policy choice in the Biden administration, moreover, comes straight from the top.

In 2013, NRA-ILA Director of Federal Affairs Jim Baker met with then-Vice President Joe Biden. Baker asked Biden about the lack of prosecutions for those who lie on 4473s. Biden replied, "And to your point, Mr. Baker, regarding the lack of prosecutions on [sic] lying on Form 4473s, we simply don't have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately." Biden’s position is clear: further burden law-abiding Americans with new gun control, while letting actual criminals who violate existing laws go free.

For further examples of how anti-gun politicians are indifferent to enforcing gun laws against criminals, see a recent NRA-ILA alert item on Washington, D.C.’s ongoing experiment in anarchy.

Firearm prohibitionists know that if they subject gun ownership to enough cost, bureaucracy, and legal peril, Americans determined to stay on the right side of the law might eventually just opt out of it. As for the unrepentant criminals who continue to commit gun crime? They play their part in the anti-gun agenda, too, by helping to justify civilian disarmament laws to a timid, ill-informed portion of the populace.

Hunter’s sordid tale just brings into better focus what astute gun rights supporters have long understood.

The purpose of America’s gun control regime is to diminish the rights of law-abiding gun owners and empower those who wield governmental authority, not to stop criminals.

© 2023 National Rifle Association of America, Institute for Legislative Action. This may be reproduced. This may not be reproduced for commercial purposes.