President Biden’s Justice Department is urging a federal appeals court to uphold the conviction of a black college student who admitted to using marijuana while owning guns, arguing tokers “are unlikely to put their guns away” properly — in a case that could impact a similar matter against first son Hunter Biden.
The Philadelphia-based Third Circuit Court of Appeals, which is considering the case, has jurisdiction over Delaware, where President Biden’s surviving son faces federal charges for owning a gun while a crack cocaine user after he turned down a probation-only plea deal that included tax charges.
Attorneys for Erik Harris, now 25, are seeking to overturn the ban on drug users owning guns, arguing the Second Amendment bars the restriction and that their client was unfairly prosecuted while more powerful people aren’t.
The DOJ argued in a Wednesday court filing that the ban is necessary for public safety reasons.
“Harris claimed to lose one of his firearms (potentially at a bar) on the same evening that he smoked marijuana and was drunk,” wrote Andrew Noll, a DC-based attorney with the Justice Department’s Criminal Division.
“Users are unlikely to put their guns away before using drugs and retrieve them only after regaining lucidity,” Noll wrote. “And it is unclear how the government could reasonably administer a regime that permitted confiscation only during the several-hour period a person is intoxicated.”
Alcohol users are able to own guns and gun-rights activists argue that pot users in particular should be allowed to do so as well.
Harris was a junior in college at the Pittsburgh-area California University of Pennsylvania when he reported to police in April 2019 that one of his three guns was missing — less than a year after Hunter Biden’s girlfriend Hallie Biden — who had been married to his late brother Beau — threw his recently purchased gun into a trash bin outside a grocery store, triggering an unsuccessful search for it.
In Harris’ case, police busted the suspected thief, but then charged him with illegally buying three guns because he — like Hunter — said he was not an illegal drug user at the time of purchase, despite admitting to police that he regularly used marijuana.
Harris pleaded guilty under the condition that he would be allowed to appeal and requested probation.
He was sentenced instead to six months in prison followed by six months of house arrest and two-and-a-half years probation.
Harris was remanded to prison on March 3, 2022, and was released on July 29 of that year, according to online records, meaning he ultimately spent nearly five months behind bars.
The plea deal that the Justice Department offered to Hunter Biden in June, by contrast, would have granted the 53-year-old first son just two years of probation for his gun violation and for bilking Uncle Sam out of millions in taxes on foreign income.
Hunter Biden turned down the “sweetheart” deal at a dramatic court hearing July 26 — with his legal team arguing the deal should have included even broader immunity for past criminal conduct.
Special counsel David Weiss, who had offered the plea deal to Hunter, recently established a Los Angeles grand jury to consider tax-related charges.
Harris is being represented by the Pittsburgh federal defender’s office and his attorneys argue he was railroaded.
“Police and prosecutors can make subjective calls about who among the tens of millions of Americans who admit to being current illicit drug users they consider to be ‘unlawful users’ in need of a felony conviction,” assistant federal public defender Renee Pietropaolo wrote in a court filing last year.
“Public figures like Bill Maher and Joe Rogan, a podcaster who publicly smoked marijuana and possesses firearms, are not likely to be prosecuted,” she wrote.
“Erik Harris, a young black man who qualifies for court-appointed counsel, now has a felony conviction on his record and he will never again be permitted to exercise Second Amendment rights.”
The attorney went on: “Categorically disarming some large (and growing) number of Americans from possessing firearms, even in their homes, because they use marijuana substantially infringes on the personal, fundamental right under the Second Amendment to keep and bear arms.”
Pietropaolo did not respond to The Post’s request for comment.
Oral arguments in Harris’ appeal are scheduled for Dec. 8. Hunter Biden is expected to go on trial in his gun case early next year.
Marijuana remains federally illegal and President Biden is among a dwindling number of elected Democrats who want it to remain so.
Currently, 24 states, three territories and Washington, DC, allow the drug’s recreational use under local law. Pennsylvania, where Harris was charged, is not among the 24, but it does allow medical use.
Cocaine has not been legalized by any state and it’s unclear if a ruling in Harris’ case would bear on all illegal drugs or more narrowly on marijuana.
Biden, who has called for stricter gun laws, has been put in an awkward spot by his son’s legal troubles. As president, he has a constitutional right to pardon his son and past presidents have let relatives off the hook during their final days in office.
