B.L.U.F. Hunter might get off the hook on counts 1 and 2 if count 3, §922(g)(3) is struck down for constitutional reasons.
— 18 U.S.C. §922(a)(6)
Form 4473 asks a series of questions, as well as having several places for you to fill in your information. It is pretty clear that if you lie in the section asking questions to determine if you are a prohibited person, you are lying about a material fact. What if you were to write the wrong county down? Is that a “material fact” with respect to acquiring a firearm?
It doesn’t seem to be. While it would not surprise me to learn that the ATF pulled an FFL’s license because somebody misspelled the county name, I don’t think anybody has been prosecuted for misspelling the county name on a 4473.
— 18 U.S.C. §924(a)(1)(A)
The information required is only required if it is a “material fact”.
The short of it is that if this was anybody with an R after their name instead of a Biden, counts 1 and 2 would hold. Even if count 3 and 1 are tossed, count 2 would likely still hold.
Hunter’s lawyers will use Bruen and the other cases against §922(g)(3) to argue that the law is unconstitutional. They are likely to win. Biden, don’t you know.
If count 3, §922(g)(3) is tossed, does §922(a)(6) still stand? If being a user of a controlled substance in not a “material fact” then count 1 goes as well.
This means that only count 2, §924(a)(1)(A) still stands. If being a user of a controlled substance is not material, then is the information required?
All in all, it looks like a good case for the Second Amendment, a poor case for justice. As more than one pundit has pointed out, this is one of the few crimes that Hunter could have been charged with that does not implicate his father.
H/T Mark Smith