In the latest attempt by jurists to implement the Supreme Court’s method of historical interpretation of firearms regulation, an appellate court on Wednesday struck down the federal prohibition on drug users possessing firearms. This could set up another major Second Amendment decision from the high court’s justices next year. 

In 2022, Patrick Daniels was arrested in Mississippi for possessing marijuana and two firearms in his vehicle. Law enforcement found that Mr. Daniels was not intoxicated by any substance at the time of his arrest, but he was charged regardless for possessing a firearm while admitting to being a drug user. 

Mr. Daniels had sought relief from the gun charge from Judge Louis Guirola — a jurist at the Southern District of Mississippi who took senior status in 2018 and now serves on the Foreign Intelligence Surveillance Court. Judge Guirola, who was appointed to the bench by President George W. Bush, upheld Mr. Daniels’s conviction in 2022. 

On Wednesday, three jurists of the Fifth Circuit Court of Appeals vacated Mr. Daniels’s conviction, writing that Supreme Court precedent makes the prohibition on drug users possessing firearms moot because it has no historical tradition in America. 

The opinion for the court was written by Judge Jerry Smith, an appointee of President Reagan. “In short, 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,” Judge Smith wrote. He was joined in the opinion by Judges Don Willett and Stephen Higginson, who were named to the Fifth Circuit by Presidents Trump and Obama, respectively. 

The Supreme Court case at the center of Mr. Daniels’s case is New York Pistol and Rifle Association, Inc. v. Bruen, which set forth a new standard for federal judges to evaluate firearm regulations. For such restrictions to be legal, they must be “consistent with the Second Amendment’s text and historical understanding.” 

In Mr. Daniels’s case, the jurists of the Fifth Circuit held that there is no “tradition” of the government restricting sober persons’ Second Amendment rights, even if they happen to be habitual users of drugs or alcohol: “Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side.” The Founders, Judge Smith wrote, “allowed alcoholics to possess firearms while sober.”

At the same time the Fifth Circuit declared this prohibition unconstitutional, Hunter Biden is attempting to enter a pretrial diversion agreement with federal prosecutors at Delaware for violating the same statute.

Mr. Biden has publicly admitted to lying on a government form in order to purchase a firearm, even though he was addicted to crack cocaine at the time. A pretrial diversion agreement would allow Mr. Biden to avoid both jail time and a guilty plea.

The original agreement stipulated that he would enter 24 months of supervised drug testing and agree to never purchase a firearm again, though that agreement has been delayed by the judge overseeing the case. Mr. Biden’s lawyer in the Delaware case, Christopher Clark, did not immediately respond to a request for comment. 

The Fifth Circuit handed down a major Second Amendment decision earlier this year in United States v. Rahimi, which declared unconstitutional the federal ban on those under restraining orders from possessing weapons. 

In that case, a Texas man, Zackey Rahimi, was arrested for committing a string of shootings. When law enforcement searched his home, they found he was in possession of multiple firearms while under a restraining order from his then-girlfriend. He challenged his conviction on the charge of possessing a firearm while under a restraining order, arguing that the ban was unconstitutional under the new standard set forth in Bruen. 

One of those three jurists who ruled in favor of Mr. Rahimi, Judge James Ho, issued a concurring opinion that argued for stricter penalties for domestic abuse but said that such punishments must be handed out without “offending” citizens’ Second Amendment rights. 

“Those who commit or criminally threaten domestic violence have already demonstrated an utter lack of respect for the rights of others and the rule of law,” Judge Ho wrote. “So merely enacting laws that tell them to disarm is a woefully inadequate solution. Abusers must be detained, prosecuted, and incarcerated. And that’s what the criminal justice system is for.” Judge Ho had also been a clerk for Judge Smith when he was a young lawyer. 

At the end of this year’s Supreme Court term, the justices announced that they would hear the government’s appeal in the Rahimi case, setting up what could be another landmark decision from the high court next year.