As promised, Hunter Biden’s attorneys have invoked the Second Amendment in defense of their client, arguing in a new filing that the federal charges he faces for purchasing and possessing a gun while an unlawful user of drugs (and lying about his status on the federal paperwork he filled out when buying a pistol) is unconstitutional. But that’s hardly the main focus of lead attorney Abbe Lowell and his associates. In fact, the Second Amendment defense is more of an afterthought than anything else.

Instead, Lowell and his team argue that Biden’s entire case, including his gun charges and more recent criminal charges over taxes, is politically motivated and should be tossed out by the federal judiciary. Biden’s attorneys maintain that the federal firearm felonies he’s been charged with are rarely prosecuted by DOJ, pointing to statistics from 2008 to 2017 showing that those crimes made up approximately 1.8 percent of all federal gun cases. They also claim that prosecuting Biden flies in the face of the enforcement efforts on the part of former AG Jeff Sessions, who directed U.S. Attorneys to prioritize cases involving the most violent and prolific offenders.

The unfortunate truth is that DOJ lacks the resources to prosecute even a fraction of dangerous acts of gun violence. Yet, DOJ devotes its limited resources to charging Mr. Biden, who (1) purchased a single, small revolver that he never loaded or fired and owned for just eleven days, (2) has no criminal record or history of violence, and (3) has never posed any risk to public safety. DOJ is supposed to be “evaluat[ing] the best way to build or maintain trust and legitimacy, to set strategic enforcement priorities, and to measure success by the actual reduction in violent crime. . . .” May 26, 2021 Memorandum To DOJ Employees, supra note 97 at 5.

Prosecuting Mr. Biden undermines DOJ trust and legitimacy, and it certainly does nothing to reduce violent crime, which is undoubtably why DOJ declined to bring charges for years and, even when it did so under political duress, it was willing to avoid prosecution through a nonprosecution agreement and then, only after political pressure, a diversion agreement.

The problem with that argument is that while these kinds of prosecutions may be rare, they do still take place, even if the defendant’s dad isn’t in the White House. In U.S. v. Daniels, which may soon be heard by the Supreme Court, Patrick Darnell Daniels was sentenced to four years in federal prison after being convicted of using marijuana while possessing a firearm. There were no underlying crimes of violence associated with Daniels’ conviction either, just the allegation that Daniels violated federal law by smoking pot and owning guns at the same time.

Lowell and his fellow attorneys are clearly aware of the Daniels case because they reference it in their brief, though only obliquely in noting that the Fifth Circuit has found the federal statute in question unconstitutional. But while they acknowledge the Fifth Circuit’s decision, they don’t flesh out the argument that 18 U.S.C. § 922(g)(3) is a violation of the Second Amendment. I happen to agree with the Fifth Circuit, but Lowell doesn’t make a compelling case as to why a federal judge in the Third Circuit should adopt the Fifth Circuit’s point of view and toss out the charges against Hunter Biden.

Biden and his attorneys maintain that he wouldn’t be facing these charges if he wasn’t the president’s son, but it could just as easily be argued that given the high-profile nature of his initial purchase and the loss of his gun when his girlfriend took it and threw it in a dumpster at a time when Biden himself has copped to smoking crack cocaine “every fifteen minutes”, giving him a pass on prosecution would be a politically motivated act all its own. The DOJ maintains that any unlawful user of drugs, even in a state where that drug has been decriminalized or legalized, is not a “law-abiding citizen,” and therefore has no Second Amendment rights. This isn’t an argument deployed solely against Hunter Biden, and if DOJ decided not to pursue charges when he has all but admitted to violating the federal statute, the cries of favoritism would be heard from sea to shining sea.

If and when the judge overseeing Biden’s case rejects the argument that Biden’s charges should be thrown out, perhaps Biden’s defense team will mount a more substantial Second Amendment challenge to U.S.C. § 922(g)(3), but for now, his 2A defense is ancillary to his claim that the only reason he’s facing these felonies is because of who he is, not what he’s done.