‘Tellingly absent’: Hunter Biden lawyers embrace Second Amendment, claim lack of evidence in motions for acquittal as federal gun trial speeds toward end

Hunter Biden, left, arrives to federal court with his wife, Melissa Cohen Biden, June 6, 2024, in Wilmington, Del. (AP Photo/Matt Slocum, File)

With the prosecution resting its case last week and the defense expected to do the same on Monday, Hunter Biden’s team filed three motions in support of an acquittal in his federal gun trial, in one instance claiming the government has charged a “non-crime.”

The motions last Friday also attacked the case on multiple other grounds, citing the Second Amendment, the Fifth Amendment, the “insufficiency” of the evidence.

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Special counsel David Weiss maintains that Hunter Biden “knowingly made a false and fictitious written statement, intended and likely to deceive” StarQuest Shooters & Survival Supply to obtain a Colt Cobra 38SPL revolver when Biden “certified” on an ATF form that he “was not an unlawful user of, and addicted to, any stimulant, narcotic drug, and any other controlled substance[.]”

Weiss additionally alleges, as seen in count 3 of the indictment, that Biden illegally possessed the revolver between Oct. 12, 2018 to Oct. 23, 2018, an 11-day period, while “knowing” that he was an unlawful user of or addicted to drugs.

Defense lawyers for President Joe Biden’s son, however, argued in one motion for acquittal that count 3 charged a “non-crime,” writing that the “offense charged no longer exists” as 18 U.S.C. § 922(g) is “no longer criminally enforceable under Section 924(a)(2)[.]”

The defense asserted that the fact of a congressional amendment of 18 U.S.C. § 924(a)(2) in 2022 should be enough for U.S. District Judge Maryellen Noreika to find count 3 invalid.

“In amending Section 924(a)(2) in June 2022, Congress did not attach any provision allowing the prior language in Section 924(a)(2) to continue being enforced after the cross-reference to Section 922(g) was deleted,” the motion said. “If Congress had intended to maintain the enforceability of Section 924(a)(2) as to pre-amendment violations of Section 922(g), it would have followed its past practice of making that clear in its amendments to the statute.”

Biden’s lawyers further argued separately that the Second Amendment and recent Supreme Court precedent courtesy of Justice Clarence Thomas in New York State Rifle & Pistol Association, Inc. v. Bruen, as applied by the Fifth Circuit in U.S. v. Daniels, should lead to acquittal.

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Early on in the case, the defense said that the statute used to charged Biden is “indefensible under the Bruen framework,” as there’s “no historical precedent for prohibiting gun ownership by persons who had any history of ingesting intoxicating substances.”

Again claiming that the statute is unconstitutional as applied to him, Biden said the prosecution should fail “for the same reason that the prosecution failed in [U.S. v.] Daniels,” warning that the government is trying to criminalize gun ownership for anyone has illicitly used drugs in the past and later possesses a gun.

The example the defense has used before is that past marijuana users could theoretically be prosecuted as federal felons when later possessing a firearm.

But the defense argued that Weiss must show Biden was using drugs “at the same time he possessed the gun.” While not contesting that Biden was addicted to crack, the defense asserted that the prosecution has still fallen short in proving that he was using drugs when he bought and possessed the revolver.

“Given the evidence that was admitted in the government’s case, there is plenty of evidence of when Mr. Biden was using drugs, including his own admissions in his book. By contrast, what the government calls evidence of drug use during the time period in which he owned a gun is very different: no one witnessing him using drugs, no texts or other messages arranging drug buys, no pictures of drugs, no picture of scales, no picture of Mr. Biden using, nothing meaningful at all,” the motion said. “The fact that such evidence is plentiful when Mr. Biden is using and is tellingly absent in this time frame further confirms that he was not using drugs then.”

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This argument was also at the heart of the motion for acquittal based on a lack of evidence that Biden “knowingly” viewed himself as an addict after going to rehab but bought the revolver anyway.

“And certainly, in a case with a ‘knowingly’ requirement, there is no evidence that when Mr. Biden bought the gun, after having gone through a detoxification and rehabilitation program, he believed that he still suffered from drug addiction or was a present-tense drug user because he had stopped using,” the defense said. “With the benefit of hindsight, we know Mr. Biden’s sobriety did not last, but that does not change the fact that he did not ‘knowingly’ make a false statement in denying in the present tense that he was a drug user or addict.”

The post ‘Tellingly absent’: Hunter Biden lawyers embrace Second Amendment, claim lack of evidence in motions for acquittal as federal gun trial speeds toward end first appeared on Law & Crime.

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