Here’s one for the amateur legal eagles among our pro-gun camp, but as most are well aware, the legal landscape surrounding the gun ban for drug users is increasingly complex, especially as more states legalize the use of marijuana while it remains steadfastly illegal under federal law. As a result of that and other legal rulings, federal courts remain divided on the statute that led to Hunter Biden’s recent conviction.

Biden’s attorneys have vowed to “vigorously pursue all the legal challenges” following his conviction for illegally possessing a firearm while being a drug user and for lying about his substance use on a federal form, writes Jacqueline Thomsen for Bloomberg Law. (Yes, it’s owned and run by the same anti-gun Bloomberg empire TTAG readers will know and despise, but Thomsen’s article was interestingly a fairly straightforward look at the way courts have fallen on the law.)

This legal battle, she notes, stems from the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which emphasized that gun restrictions must align with historical and traditional practices. As a result, some federal courts have questioned the constitutionality of 18 U.S.C. § 922(g)(3), the law Biden was charged under.

Legal expert Adam Winkler noted, “There’s at least a chance Hunter Biden would win that appeal.”

Although no federal court has outright struck down the statute as unconstitutional, some rulings suggest that it may not hold up in certain cases. For instance, Fifth Circuit Judge Jerry Smith argued that “our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage.”

Despite the trial judge rejecting a constitutional challenge in Biden’s case, legal scholars highlight that federal courts are split on similar issues. The Eighth Circuit upheld the law, but the Fifth Circuit, in USA v. Daniels, dismissed charges against a marijuana user, suggesting Biden’s legal team might use this rationale in their appeal.

Another pivotal case, USA v. Rahimi, involves the Fifth Circuit’s decision that found a provision barring those under domestic violence orders from possessing firearms unconstitutional. The Supreme Court’s pending decision on this case could also influence Biden’s appeal. Andrew Willinger from the Duke Center for Firearms Law remarked, “If the Supreme Court reverses [Rahimi], that probably makes the appeal more of a long shot.”

Additionally, the Third Circuit has questioned another gun ban post-Bruen, indicating potential receptivity to arguments against disarming drug users who haven’t been convicted of a crime.

“If you’re going to strike down a law banning felons possessing firearms, you’re certainly likely to strike down a law banning users of controlled substances who’ve never been convicted of a crime from possessing firearms,” Winkler suggested.

However, the outcome remains uncertain.

“The atmospherics might change some of the ways that the judges view the case, so I’m not sure exactly what the court would do,” legal expert Jacob Charles from Pepperdine University pointed out.

One key point to keep in mind is even if Biden’s gun possession charge is overturned, his convictions for lying on federal forms to obtain the gun might stand. Legal experts argue that the obligation to provide truthful information is distinct from the underlying prohibition.

“You still have an obligation to actually be accurate in how you fill out that form,” Willinger emphasized, though the punishment for lying on a form is likely much less than violating gun laws.

Either way, despite Biden’s recent conviction, this legal battle is far from over and could ultimately prove to shape gun law in a way that may create obstacles for his father’s anti-gun political agenda.