There is a special brand of irony that Hunter Biden, son of anti-gun President Joe Biden, will use last year’s Supreme Court decision in N.Y.S. Rifle & Pistol Association v. Bruen to challenge his indictment for being a drug addict in possession of a gun and lying under oath to buy that gun.

The president himself issued a statement following the Bruen decision, “I am deeply disappointed by (the court’s) ruling in (Bruen) … I urge states to continue to enact and enforce commonsense laws to make their citizens safer from gun violence.”

Yes, gun violence is an epidemic in this country, and Bruen makes it far harder for government to enforce laws aimed at reducing gun violence.

The seminal law Congress passed to make citizens safer is 18 U.S.C.§922; section (g)(3); criminalizes the possession of a gun by anyone who is “an unlawful user of any … controlled substance.”  To buy a gun from a dealer, which Hunter Biden did, he had to answer questions on a form under oath, averring he was not an unlawful user, or addicted to, a controlled substance.

As he admits in his 2021 published book, when he bought a gun, Hunter Biden was deeply engaged in the world of crack cocaine, wrecking cars while high, and going in and out of rehab. He writes of his experience that he escaped the “Four Horseman of the Crackocalypse.” Hunter was a drug addict who had a gun and lied to get it.  In a pre-Bruen world, if the U.S. attorney decided to prosecute under these circumstances, it was checkmate.

Biden will raise Bruen as a bar to prosecution on the grounds that 18 U.S.C. 922(g)(3) is an unconstitutional law that violates his Second Amendment rights. As off the hook as that claim appears, it is based on the Supreme Court’s holding in Bruen that in order for a gun restriction to be enforceable it must be found in the “Nation’s historical tradition of firearm regulation,” which means that at the time of the founding of this nation, 1791, or soon before or soon after, there had to be an appreciable number of people in the Colonies governed by either that law or a law that is analogous.

Once challenged, the burden is the government’s to prove that there was such a law at the time of the nation’s founding. If the government fails to meet its burden, the law fails. It matters not that 18 U.S.C. 922 has been law since 1988; that date misses the nation’s historical tradition test by two centuries.

There is very little chance the government can credibly point to any law that existed in 1791 that banned possession of a firearm by a drug addict, or even an alcoholic, which would be analogous. There were laws that banned possession of guns by people the government feared might revolt against it, such as enslaved people, native Americans and people of the wrong political party.  But drugs were not on the founders’ radar.

As things stand today, a U.S. District Court will have little latitude in ruling if it adheres to Bruen, and the result should be dismissal of charges for Mr. Biden’s gun offenses and perjury.

The Supreme Court may have been surprised and distressed by the unforeseen consequences that resulted from its majority’s decision in Bruen. As a result, it has agreed to revisit aspects of Bruen in an appeal from the 5th Circuit, where that court reversed the conviction of Mr. Rahimi who owned a gun in violation of 18 U.S.C. §922(g)(4).

Although Rahimi was subject to a domestic violence court order, the 5th Circuit held that a restriction on ownership for that reason would not pass the nation’s historical tradition of firearm regulation test, because there were no such restrictions extant in 1791.

The questions will be whether the court will attempt to plug some of the public safety problems that Bruen creates, and if it does, how will it do so. Will it toss the nation’s historical tradition of firearms regulation test? Will it do something less?

The Supreme Court has a great incentive to act, and it’s likely to pare back Bruen because even some of the most conservative justices writing concurring opinions in Bruen expressed the need to keep guns away from dangerous people. Bruen prevents the government from keeping us safer than we were pre-Bruen.

James Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches Second Amendment law. 

This article was originally published in The Daily Record.