Donald Trump's campaign issued a brief statement after Hunter Biden was convicted on federal gun charges Tuesday,  calling the trial "nothing more than a distraction from the real crimes of the Biden Crime Family, which has raked in tens of millions of dollars from China, Russia and Ukraine." 

The statement added, "Campaign 'Crooked' Joe Biden's reign over the Biden Family Criminal Empire is all coming to an end on November 5th, and never again will a Biden sell government access for personal profit."

I know that a lot of folks believe that prosecutor David Weiss intentionally allowed several of the statutes of limitations to expire in order to avoid charging Hunter Biden with more serious crimes, and that may very well end up being one of Trump's talking points going forward. But there's a case to be made that, whatever other crimes Trump may accuse the Biden family of committing, he should announce he'll pardon Hunter Biden on the gun charges if he's reelected in November. 

There are a substantial number of gun owners (me included) who think that at least one of the statutes Hunter Biden was convicted of violating is an unconstitutional infringement on our Second Amendment rights. Should "unlawful" users of drugs be barred from possessing firearms? Or rather, can they be prohibited from exercising their Second Amendment rights simply because they use illegal drugs? 

I agree. He (and others) should be in jail for impugning the integrity of the United States by taking bribes for political favors, but not for this pseudo-crime.

— Elon Musk (@elonmusk) June 11, 2024

For many of us, there may be a distinction between smoking crack every fifteen minutes and smoking a bowl of the devil's lettuce after a hard day's work, but there's not one iota of difference as far as the federal government is concerned. When the DEA rescheduled marijuana as a Schedule III drug it will be legal to possess federally so long as it's been prescribed by a doctor, but as of today residents in the 38 states where marijuana has been legalized recreationally or medicinally have to choose between exercising their right to keep and bear arms or using cannabis. They can get completely soused on the beverage of their choice every night of the week if they want and still maintain their 2A rights, but if a cancer patient on chemo would like to try a gummy to see if it helps with her nausea, she better not do it until she divests herself of her gun collection.  

The current state of the law is so screwy that if the same cancer patient is prescribed oxycodone for her pain, she can still purchase a firearm without violating federal law. Now, some of this will be rectified by the DEA's rescheduling of cannabis to Schedule III, but there will still be millions of Americans who lawfully use marijuana recreationally under state law who'll still be at risk of federal prosecution. 

Commentator Shermichael Singleton made the case on CNN shortly after Hunter's conviction was announced that "authentically conservative" Americans should be rooting for the Supreme Court to repeal Section 922(g)(3). 

“I mean, if they are authentically conservative, they would agree that he should not get any jail time here,” said Singleton, who went on to tout his pro-Second Amendment bona fides. “I don’t think this case should have ever been brought, to tell you the truth, Brianna.”

He continued: 

I think if he does appeal this case, I hope it goes up to the Supreme Court. I would love for SCOTUS to have a say on this, hopefully they overturn it.

I think about the many examples of men of color — there are three at this table — who have been pulled over by a police officer. The police says, “Well, we smell marijuana, get out of the car.” You’re all of a sudden arrested. Then they find a gun, so a simple charge of possession of marijuana now becomes a felony charge. Many of those men are sitting in jail because the law states that you cannot use a controlled substance and be in ownership of a firearm.

I vehemently disagree with that. I think you should be able to own a gun. A lot of people out there use marijuana for whatever purposes, a lot of veterans use marijuana for PTSD purposes. Should they not have the right to own a firearm for protective purposes? I think they should. I think most Americans would agree, that they should. So the politics aside from here, I think this is wholly unconstitutional. And I do hope SCOTUS has the final say.

I suspect Singleton is right, at least when it comes to marijuana. Whether a majority of Americans agree that crack users or those addicted to opiates should be able to purchase and possess a firearm is another question, but again, the current federal statute doesn't differentiate between cannabis and crack (or powder) cocaine. And based on the Fifth Circuit Court of Appeals ruling in U.S. v. Daniels, the national tradition of gun ownership doesn't support gun bans for users of intoxicating substances. Instead, the tradition is one of banning the possession of firearms while under the influence. 

That's the constitutional case for the Supreme Court to repeal the law, but it's also a constitutional path for Trump to offer a pardon for all those convicted of violating the statute. 

There's also a good political argument for Trump to pardon Hunter, along with Patrick Darnell Daniels and others convicted for the non-violent offense of possessing a firearm while an unlawful user of drugs. It's estimated that almost one-in-five Americans have used illegal drugs in the past month, which translates to tens of millions of voters who are potentially at risk of facing the same charges as Hunter Biden. As Shermichael Singleton pointed out, young men of color are disproportionately impacted by statutes like these. Trump could continue to make inroads with voters by signaling his intent to pardon folks like Biden and Daniels, while pledging to use law enforcement resources to go after violent criminals and predators. 

Ideally, Trump would also talk about treating addiction as the disease that it is; one of the deadliest in the country. More than 100,000 Americans die in drug overdoses every year; another 100,000 lost to alcohol-related causes. That's about five times the number of gun-involved deaths, both suicide and homicide. I may be opposed to turning people into felons for owning a gun and using drugs, but that doesn't mean we can ignore the devastation caused by addiction. Hunter Biden's case, and the issue of Section 922(g)(3) are a fairly natural way for Trump to talk about his plans to address the crisis, while sparing tens of millions of Americans from the possibility of winding up charged or convicted like Hunter Biden. 

Even one of the jurors who voted to convict Hunter Biden said they don't believe he belongs in jail, yet defendants like Patrick Darnell Daniels are facing years in federal prison for using marijuana and owning guns at the same time. Biden's defenders claim that the statute is almost never used, but almost doesn't mean never. If it really is used so infrequently, however, then why not simply get rid of it? Trump needs help from Congress or the Supreme Court to enact that change, but if he's reelected he can at least grant relief to those already subjected to the statute's provisions. 

Joe Biden's said he won't pardon his son, which is really the only thing he can say without revealing himself as someone who believes his family is above the law. Trump, on the other hand, has more flexibility on the issue, and can even offer up a note of empathy to Hunter Biden over unjust convictions if he chooses.  

To be clear, it would be a mistake for Trump to single out Hunter Biden for a pardon if he's reelected. But offering a blanket pardon for every non-violent defendant convicted solely under Section 922(g)(3), including Hunter Biden? I believe it's the right move from a constitutional perspective, and though it would be controversial, it could even ultimately be helpful to his campaign.