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One federal appeals court ruled that Hunter Bidens gun charges could proceed this week, while another added support to his Second Amendment argument against them.

On Thursday, a three-judge panel on the Third Circuit Court of Appeals unanimously rejected an attempt by the Presidents son to avoid a trial. Biden tried to get the panel to end his case based on his since-retracted agreement with prosecutors. Instead, they decided he didnt have a claim to avoid prosecution.

The defendant in this criminal case appealed three pretrial orders entered on April 12, 2024, denying his motions to dismiss the indictment, the panel wrote in US v. Biden. This appeal is DISMISSED because the defendant has not shown the District Courts orders are appealable before final judgment.

The ruling means the younger Biden is likely to face a federal judge this summer, likely stealing some attention away from the legal troubles of his fathers opponent in Novembers election. However, the panel didnt rule on his underlying Second Amendment defense, and another federal court just provided further backing to that argument.

On the same day the Third Circuit denied Hunters request, a three-judge panel on the Ninth Circuit Court of Appeals ruled the federal gun ban he is being prosecuted under is unconstitutional as applied to a non-violent felon whose rap sheet includes a drug possession charge. The 2-1 ruling in US v. Duarteprovides some more ammunition for Hunters lawyers to use in his case. After applying the history and tradition standard for judging the constitutionality of gun laws handed down by the Supreme Court in 2022s New York State Rifle and Pistol Association v. Bruen, the majority decided there wasnt enough evidence the defendants previous crimes would have resulted in a lifetime gun ban at the time the Second Amendment was adopted.

Duartes underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding, the panel wrote. Duartes second predicate offensefelon in possession of a firearm, Cal. Pen. Code 29800(a)(1)was a nonexistent crime in this country until the passage of the Federal Firearms Act of 1938. As for Duartes remaining convictionsdrug possession and evading a peace officerwe do not know whether either crime traces back to an analogous, Founding-era predecessor because the Government failed to proffer that evidence. Based on this record, we cannot say that Duartes predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.

In a footnote, the majority in Duarte argued the drug possession charges were perhaps the least analogous to Founding Era laws.

Criminalizing drug possession, in particular, did not appear to gain significant momentum until the early 20th century, with the passage of such laws as the Food and Drug Act of 1906 and the Harrison Narcotics Tax Act of 1914, the panel wrote. Before then, what we now think of as illicit drugs, such as opium and cocaine, were . . . legal in the United States for a long stretch of this countrys history.

Bidens lawyers have argued the judge in his case should dismiss his three-count felony firearms indictment for purchasing and possessing a revolver during a time in his life for the same reasons.

Not only does the unconstitutionality of Section 922(g)(3) render Mr. Bidens alleged violation of that unconstitutional statute baseless, it compels the same conclusion as to the prosecutions charges that Mr. Biden made a false statement in denying his status as a user of a controlled substance under 18 U.S.C. 922(a)(6) and caused the seller (a holder of a federal firearms license) to maintain a record of this false answer in violation of 18 U.S.C. 924(a)(1)(A), their motion inUS v. Bidenreads.

The only other federal appeals court to rule on the question found the ban was unconstitutional as applied to a marijuana user.

In short, our history and tradition may support some limits on an intoxicated persons right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage, Fifth Circuit Judge Jerry E. Smith wrote for a unanimous three-judge panel in US v. Daniels. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.

Bidens lawyers cited that ruling in arguing his use of crack cocaine or other drugs should not have cost him his gun rights.

TheBruenframework is clear, and the historical record is immutable and the same before this Court as it was when the Fifth Circuit addressed it, they wrote.

Of course, not every federal judge has come down on the side of drug users or other non-violent felons whove challenged their gun possession charges. In fact, most have upheld those convictions by either determining Second Amendment protections only extend to the law-abiding or the historical gun bans cited in Duarte are analogous to the modern bans. The Supreme Court has not yet agreed to hear a case on the question and is unlikely to do so before Bidens case goes to trial.

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