Biden pardon is unpardonable, but the gun-and-drugs law does need fixing

Hunter Biden was convicted of three offenses regarding his use of drugs while owning a gun. The president’s pardon statement concentrated on the two offenses involving lying, on a federal form required for his gun purchase, about his substance abuse. While the president didn’t concentrate on the third offense, that of illegally possessing the firearm while being an unlawful user of a controlled substance, the federal forms at issue in the first two counts are part of the enforcement regime stemming from the statutory subclause in that third offense. The president’s comments on those two, therefore, are applicable to the third charge regarding the gun ownership itself.

Here’s what President Biden said that was at least partially correct: “Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges” related to the prohibition of gun ownership by substance abusers. The key word there is “almost.” For years, federal courts have wrestled with cases in which prosecutors actually did try to convict people for mere gun ownership unrelated to other crimes. In some of those cases, federal courts have found the statute, as applied to particular circumstances, to be an unconstitutional violation of the Second Amendment right to bear arms. In a somewhat parallel case in 2019, a 7-2 Supreme Court threw out a similarly unwarranted prohibition of gun ownership.

Those court decisions make a lot of sense. For someone never convicted of a drug offense to be deprived of his ability to merely possess a gun is to deny a right without due process of law. If someone is suspected of smoking a marijuana joint, that doesn’t mean the federal authorities can forbid him from exercising his First Amendment speech rights, so why would they be able to say he can’t exercise his self-defensive Second Amendment gun ownership rights, completely unrelated to any illegal use of the gun itself?

I’ve written several times before about the case of Stephen Nodine, a former county commissioner in Alabama who, as part of a prosecutorial squeeze play related to another alleged crime that he actually did not commit, was bullied by the authorities into a guilty plea. Why? For having smoked a single marijuana joint on a beach in Florida while owning an unloaded pistol, safely in a closet 100 minutes away in Mobile, Alabama. If President Biden is serious that a pardon is due for those convicted under that statute “without aggravating factors like use in a crime,” then he should pardon Nodine and anyone else similarly situated. This is especially true since the president already has (unwisely, in my opinion) issued a blanket pardon for thousands of people convicted of simple possession of marijuana, which was Nodine’s actual misdemeanor offense. If simple marijuana possession is pardonable and simple gun possession unrelated to a crime is pardonable, surely Nodine and many others doubly deserve the forgiveness that Joe Biden showed his own son — especially since Hunter Biden’s offense, unlike Nodine’s, was a deliberate, willful transgression of the gun law.

Of course, the president isn’t really acting on principle but on the basis of family self-preservation. Nevertheless, as is demonstrated by Nodine-like cases and by simple common sense, there is a principle involved here. The federal statutory subclause at issue is 18 U.S.C. § 922(g)(3), which forbids any person “who is an unlawful user of or addicted to any controlled substance” from possessing a firearm. The obvious intent of the law is to stop major violent drug running and to keep people from actually carrying or brandishing weapons, much less using them, while under the self-evidently dangerous influence of a hard drug such as cocaine or heroin. It was not meant as a tool for prosecutors to put misdemeanor drug offenders in prison for years on end.

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The statute’s language is considerably overbroad. Congress should amend the law to correct both the constitutional deficiency and to rein in prosecutorial abuse. Rather than prohibiting gun ownership or possession per se, the law should ban only the actual bearing of arms while under the influence of, or while trafficking in, illegal drugs.

That way, in response to the travesty of President Biden’s abuse of the pardon power, Congress can do something actually worthwhile.