Without the diversion agreement, Weiss is free to prosecute Biden on the gun charge as well as the tax charges.

 Without the diversion agreement, Weiss is free to prosecute Biden on the gun charge as well as the tax charges.

 That will raise a constitutional issue, since the gun charge is based on a statute that arbitrarily strips peaceful Americans of their Second Amendment rights based on their choice of politically disfavored intoxicants. That prohibition applies not only to crack users like Biden but also to cannabis consumers, regardless of whether they live in states that have legalized marijuana.

Two federal judges have concluded that the gun law Biden violated is inconsistent with "this Nation's historical tradition of firearm regulation"—the constitutional test that the Supreme Court established last year in New York State Rifle and Pistol Association v. Bruen. Last week, the U.S. Court of Appeals for the 5th Circuit agreed with that assessment, overturning the conviction of a Mississippi man who was caught with two guns and the remains of several joints during a routine traffic stop in April 2022.

The defendant in that case, Patrick Darnell Daniels Jr., received a prison sentence of nearly four years. Under Biden's proposed diversion agreement, by contrast, he would have avoided any sentence at all.