Witness testimony will continue on June 5 in the gun case against President Joe Biden’s son Hunter. 

The younger Biden, who is on trial in Wilmington, Delaware, is accused of having lied on background check forms when buying a revolver in 2018. Although the crime is punishable by more than two decades in prison, it’s unlikely that Biden would receive the maximum penalty if convicted. 

The case has drawn breathless media attention, but it has also offered an unusually public window into the intricacies and constitutional framework of American gun law.

What has Biden been charged with?

Biden is charged with three felonies related to the purchase of a Colt Cobra revolver in October 2018.  

Two of the charges concern statements Biden made on forms required by the Bureau of Alcohol, Tobacco, Firearms and Explosives. When buying a gun at a federally licensed retailer, customers are required to fill out documents certifying that they are allowed to own a gun under federal law. Convicted felons are barred from owning guns (a stipulation now relevant to former President Donald Trump), as are fugitives, people living in the country illegally, and — the category most relevant to Biden’s case — unlawful users of drugs. 

Biden allegedly marked the box indicating that he was neither using nor addicted to drugs at the time of the purchase. Such information is rarely used to prosecute gun buyers, as it is so seldom verifiable for the average consumer. But Biden, in a 2021 memoir, wrote at length about his addiction to crack cocaine and alcohol, indicating to law enforcement that he may have lied on the background check form and was actually legally ineligible to own a firearm. 

The third charge deals with Biden’s possession of the weapon. Biden owned the gun for 11 days before his then-girlfriend and brother’s widow, Hallie Biden, threw it in a dumpster because of concerns about his mental health.

Does the gun ban still apply if you haven’t been convicted of any drug crimes?

Yes. People addicted to drugs are barred from gun ownership even if the drugs they use are legal at the state level. For example, if you recreationally smoke marijuana in California — where weed has been legal to buy and smoke since 2016 — you are not allowed to own a gun. 

This is because marijuana, like most recreational drugs aside from alcohol and nicotine, is a controlled substance under federal law. And when it comes to rules about gun ownership, federal law prevails. 

“The idea behind these laws was that people who are heavy users of controlled substances can’t be trusted with firearms,” Adam Winkler, a law professor at the University of California, Los Angeles, told The Trace. He said the same logic is applied to laws against driving while intoxicated, only those rules are enforced in the act of using the product rather than at the point of sale. 

Twice in 2023, defendants ensnared by the drug user gun ban successfully challenged the law in court. They based their arguments on the Supreme Court’s 2022 decision in New York Rifle and Pistol Association v. Bruen, which requires that gun laws have a well-established historical analog to pass constitutional muster. In both cases, judges decided that no sufficient historical analog for the drug user gun ban existed.

Has Biden tried to use Bruen to dismiss the case?

Biden’s lawyers attempted to have his charges thrown out on account of Bruen, but prosecutors pushed back. They said restrictions on weapon possession among people considered dangerous date back to 14th-century England, and that language from those laws was applied in the United States when the Constitution was adopted. In May, the Philadelphia-based 3rd Circuit Court of Appeals ruled that it had no standing to intervene and allowed the charges against Biden to move forward. 

“I think the main reason that Biden was unsuccessful is that, after a few decisions early on post-Bruen that did cast doubt on this provision, most judges have ruled that the law is constitutional,” said Andrew Willinger, executive director at Duke University’s Center for Firearms Law. “A pretty sizable majority have said the law should stand.”

Biden could have the ban’s constitutionality reviewed on appeal if he’s convicted. But Willinger said that even if the possession charge is thrown out, Biden may still be on the hook for lying on the background check forms.

What penalties would Biden face if he loses?

Biden faces up to 25 years in prison if convicted. First-time offenders hardly ever receive the maximum penalty, though, and it’s unclear whether the judge would sentence Biden to any time behind bars, given his lack of criminal history. The trial is expected to last two weeks.