The Third Circuit Court of Appeals could decide whether or not there is a constitutional right to use drugs and possess firearms simultaneously after Hunter Biden notified the court he would appeal a decision from the judge overseeing his gun trial. That district court judge ruled that the Second Amendment and Supreme Court precedent does not protect the right of drug users to have firearms. 

It’s Mr. Biden’s latest attempt to get the felony gun charges thrown out ahead of his trial due to start on June 3. Multiple past efforts to get the charges dismissed or to delay the trial have failed.

The first son is on trial for purchasing a Colt revolver in 2018 while actively addicted to crack cocaine and alcohol, and for lying about that fact to the federal government on an official form. Because of a landmark Supreme Court decision from 2022, Mr. Biden argues, the use of drugs while owning a firearm is now “constitutionally permissible,” and therefore he cannot be tried. 

The 2022 New York State Rifle and Pistol Association v. Bruen decision from the Supreme Court held that all firearms laws must be “consistent with the Nation’s historical tradition of firearm regulation.” Mr. Biden’s lawyers argue that barring drug addicts from buying and possessing weapons is inconsistent with that tradition. 

“Because persons protected by the Second Amendment can no longer be denied gun ownership due simply to past drug use — a practice inconsistent with this nation’s historical tradition on firearm regulation — any false statement by Mr. Biden concerning his status as having used a controlled substance no longer concerns ‘any fact material to the lawfulness of the sale’ of a firearm,” Mr. Biden’s lawyers argued in a December 2023 motion to dismiss. 

On May 9, the presiding judge in the gun prosecution, Judge Maryellen Noreika, ruled that it was well within the government’s right to regulate drug users’ purchasing and possession of firearms. 

“The Second Amendment protects ‘the right of the people to keep and bear arms,’” Judge Noreika wote in her denial of the motion to dismiss. “That right, however, is ‘not unlimited.’ Instead, the Second Amendment allows for a ‘variety’ of firearm regulations, including the ‘longstanding prohibitions on the possession of firearms by felons and the mentally ill,’” she continued, citing other legal precedent. 

Mr. Biden is set to go to trial on June 3 in Delaware for the gun charges, though the Third Circuit could make its decision before then, either granting his motion to dismiss on the merits or denying it, or declining to hear the case altogether. When he last sought relief from the Third Circuit on appealing other motions to dismiss, a three-judge panel dismissed all appeals, saying he did not have standing at the moment. 

Mr. Biden has not disagreed with the basic facts of the gun case against him, and prosecutors are expected to use his own words from his recent memoir detailing his addiction against him. If convicted, Mr. Biden could face up to ten years in prison, though he’d likely be sentenced to far less. He also faces a second trial in California, starting June 20, on felony tax evasion charges.