Hunter Biden’s Gun Conviction and the Materiality Requirement for False Statements to a Firearms Dealer

Hunter Biden was convicted yesterday by a Delaware jury of three violations of federal gun law in connection with his 2018 purchase of a revolver from a federally-licensed gun dealer.  According to the indictment and the government’s allegations in the case, Biden lied on the ATF Form 4473 he filled out in connection with that purchase by answering “no” to the question “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”  In fact, according to the government, Biden was an unlawful user of and addicted to crack cocaine at the time of the purchase—based on admissions made in his 2021 autobiography and circumstantial evidence.  Biden was convicted of lying on the transaction form and possessing the revolver he purchased while he was an unlawful user or addict in violation of 18 U.S.C. § 922(g)(3).[1]

922(g)(3) has been challenged in a number of criminal cases over the past two years, with defendants (typically, those who have been charged with violating the provision based on marijuana use) arguing that the prohibition is inconsistent with America’s historical tradition of gun regulation.  That argument has held sway with a handful of district courts and with the Fifth Circuit Court of Appeals, which found the law unconstitutional as applied to a habitual marijuana user in an August 2023 decision in United States v. Daniels (we covered that ruling here).  As many expected, Biden raised a Second Amendment defense to his prosecution before the trial judge.  Judge Maryellen Noreika, a Trump appointee, rejected that defense in a May 9 ruling, observing that “[q]uite a few district courts have addressed § 922(g)(3) in the wake of Bruen, with the vast majority upholding its facial constitutionality.”  Judge Noreika rejected Biden’s facial challenge to the provision (noting that even Daniels did not purport to invalidate the statute on its face), and adopted the Eighth Circuit’s analysis in a recent decision that “found the regulation of firearm possession by the mentally ill to be a relevant historical analogue [supporting drug-user prohibitions] under the Bruen framework.” 

A cert petition is currently pending in Daniels and it seems likely that Biden will raise the argument again on appeal—potentially with more success, depending on the Court’s ruling in Rahimi and subsequent developments.  Second Amendment arguments did not feature in the trial itself, which focused evidence of Biden’s state of mind at the time he purchased the gun, his understanding of his own drug problem, and the brief period during which Biden possessed the revolver.

Here, however, I’d like to examine a closely related question that may also become relevant in a future appeal: whether the constitutionality of an underlying possession ban impacts the viability of a criminal charge for lying about that prohibited status on transaction paperwork when purchasing a firearm.  Biden was convicted of violating federal law when he checked “no” next to the unlawful user question because the jury found that was a false statement material to the sale.  18 U.S.C. § 922(a)(6) prohibits false oral or written statements or the provision of false information in connection with a gun transaction “with respect to any fact material to the lawfulness of the sale.”  If Biden was prohibited from possessing the gun he purchased because he was using drugs at the time, then his response to that question would clearly be material: an honest “no” response would, assuming diligence on the part of the gun store, have made the transaction itself illegal and the store would not have moved forward with the sale.  But, if the unlawful user ban is unconstitutional, then Biden was not actually prohibited from possessing a firearm and has at least an argument that his “no” answer wasn’t material to the sale within the meaning of 922(a)(6).

This exact issue was the subject of the Seventh Circuit’s June 2023 decision in United States v. Holden.  John Holden purchased a firearm in 2021 and answered “no” to the Form 4473 question “Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year . . . ?”  In fact, Holden was under indictment at the time for a state-law felony in Indiana.  While he initially pled guilty to violating 922(a)(6)—the same charge that appears twice in the Biden indictment—he later requested to withdraw that plea.  Holden argued that the charge should be thrown out because 922(n), which bars receipt or purchase of new guns by those under felony indictment, is unconstitutional under Bruen and thus he had not made a false statement that was actually material to the lawfulness of the sale.  The district judge agreed with Holden and dismissed the 922(a)(6) charges, and the Seventh Circuit reversed. 

The gist of Judge Easterbrook’s ruling for a unanimous panel is that “[t]he power to collect accurate information is of a different character—and stands on a firmer footing—than the power to prohibit particular people from owning guns.”  For example, the opinion offers a hypothetical statute barring all those whose last name begins with the letter H from possessing guns.  The law would be clearly unconstitutional, the panel says, “[b]ut that would not prevent Congress from demanding purchasers’ real names” in the context of a gun purchase.  The opinion notes that the constitutionality of the underlying prohibition, as in Biden’s case, is at least debatable and that many courts have upheld the law post-Bruen (for a detailed snapshot of district court opinions addressing 922(n) as of May 2023, see Jake Charles’ earlier post here).  However, Holden says that it ultimately doesn’t matter whether the underlying prohibition is struck down across the board.  Even then, according to the Seventh Circuit, an accurate answer might reveal other grounds to refuse the sale by leading the gun store to investigate the purchaser’s background more closely. 

Holden appears to be the sole appellate decision directly on point[2], and it is relatively unlikely this same argument surfaced much (if at all) before Bruen because of the established constitutionality of the federal prohibited status provisions during that period.  The Supreme Court addressed a related issue in its 2014 decision in Abramski v. United States, where a five-justice majority held that a straw purchaser was appropriately charged and convicted under 922(a)(6) even when the individual for whom he was buying the gun was authorized to possess it under federal law.  Four justices, including Chief Justice Roberts and Justices Thomas and Alito, dissented in Abramski, arguing that ATF had long interpreted the provision not to bar a purchase on behalf of an eligible third party, that the statutory framework already permits circumstances akin to straw purchasing such as guns intended for resale and given away as gifts, and that the rule of lenity required ruling in Abramski’s favor.  Of those in the majority in Abramski, only Justices Kagan and Sotomayor remain on the Court—leading to the natural question of whether the current Court might lean toward the dissent’s position in that case.

I think Holden is correct in deciding that a gun transaction lie can still qualify as the basis for a 922(a)(6) charge even if it relates to a prohibited status whose constitutionality is in some doubt.  Undergirding Holden’s analysis of the issue is the legislative background of the Gun Control Act of 1968.  As Professor Franklin Zimring observed shortly after the GCA was enacted, a major objective of the legislation was to fix the existing federal licensee system (under the Federal Firearms Act of 1938) where “transferors were not required to obtain positive identification of their customers or to take other steps to verify the eligibility of customers” to possess guns.  Therefore, it was virtually impossible to enforce prohibited status bans because licensees would not inquire and thus would never have knowledge of an illicit sale.  The GCA sought to reform this system in large part by imposing stricter licensing, verification, and recordkeeping requirements on federally licenses gun dealers—and accurate purchase disclosures were necessary for most parts of that system to function properly.

While the establishment of the NICS system and instantaneous electronic background checks in the 1990s and later may influence our instincts about 922(a)(6), the result in Holden seems entirely consistent with the original intent behind the GCA.  It also seems plausible, given this background, that the current Court might endorse the result in Holden even if it were inclined to overrule Abramski (given the opportunity).  Straw purchasing is a distinct context from the Biden and Holden cases, where in each instance the defendant appeared at a gun store fully intending to buy a gun for himself yet provided inaccurate information on the application form.  And it’s not clear to me that the arguments of the dissenting justices in Abramski apply with much force to such a scenario.  It doesn’t appear that ATF has ever taken the position that constitutionality of the relevant underlying status ban is required,[3] gift and resale transactions are only apt analogies for straw purchasing (not primary purchasing), and the rule of lenity only applies when “a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” 

Where does this leave us with regard to the Hunter Biden case?  Biden’s sole constitutional argument as to the 922(a)(6) charge turns on the validity of the underlying prohibition in 922(g)(3).  But, even if developments move in Biden’s favor on the unlawful-user prohibition itself, the question of whether the lying charges can stand on their own will be a novel one and could lead to further appellate litigation.  I ultimately believe that Holden will carry the day and that courts will preserve 922(a)(6) charges even where false information provided by the primary purchaser doesn’t automatically make the sale unlawful.  The current Court however, may well be closely divided on that question.

[1] Biden possessed the gun for only 11 days, at which point his then-girlfriend disposed of the revolver due to fear that Biden might use it to harm himself.

[2] The Seventh Circuit addressed 922(a)(6) in another case decided just last Friday dealing with false address information provided in connection with multiple gun purchases.  The panel in United States v. Scheidt cited Holden as binding precedent and also found that "[c]ompleting ATF Form 4473, and adhering to its attendant truth-telling requirement, is conduct that is outside the scope of the Second Amendment’s protections, not requiring application of Bruen’s historical analysis framework.

[3] As noted previously, there simply wasn’t much dispute in the courts about the lawfulness of these provisions until Bruen.