As Hunter Biden prepares for a high-profile, high-stakes trial for lying to federal officials about drug use when he purchased a firearm in 2018, his reprieve could emerge from the unlikeliest of places: Originalists, conservatives, and defenders of the Second Amendment. 

The Sun first reported that Mr. Biden’s trial for the illegal gun purchase has been tentatively scheduled for early June. The federal judge overseeing the case — Judge Maryellen Noreika of the District of Delaware — said that she is giving expedited consideration to defense attorney’s motions to dismiss as Mr. Biden awaits his day in court.

One of those motions includes an argument that the law Mr. Biden was charged with violating is itself unconstitutional according to the Second Amendment and Supreme Court precedent. Mr. Biden’s argument rests on a landmark 2022 Supreme Court decision authored by Justice Clarence Thomas.

In the case of New York State Rifle and Pistol Association v. Bruen, Justice Thomas wrote that the government must “justify” any firearms restrictions by demonstrating that it is “consistent with the Nation’s historical tradition of firearm regulation.” Mr. Biden’s attorney, Abbe Lowell, argues that the law barring active drug users from purchasing firearms is not consistent with America’s historical tradition. In a motion to dismiss the gun charges, Mr. Lowell cites Bruen directly. 

“Gun control is a politically charged topic … but the Supreme Court in New York State Rifle & Pistol Association v. Bruen recently adopted a test for evaluating the constitutionality of restrictions on the possession of firearms that resolve many of those issues,” Mr. Lowell writes. “The Supreme Court held that an individual’s right to possess a handgun is ‘presumptively’ protected by the Second Amendment.”

“The Framers were well aware of the problems caused by intoxication, but there is no historical precedent for prohibiting gun ownership by persons who had any history of ingesting intoxicating substances,” Mr. Lowell continues. Mr. Biden has admitted that he was addicted to crack cocaine and powder cocaine at the time he purchased the gun.

Mr. Biden, though, lied on a Bureau of Alcohol, Tobacco, and Firearms form when he said that he was not addicted to those substances, which has led to the current prosecution. 

The Supreme Court has faced criticism from lower court judges since the Bruen decision was released in 2022. A federal district court judge in Mississippi, Judge Carlton Reeves, famously said that the court asked judges to “play historian.” Judge Reeves threatened to appoint a historian for a trial that dealt with gun rights. 

Though Mr. Biden’s appeal — should he even be convicted — may not reach the justices for years, Justice Thomas’s opinion could come to his defense. The Executive Director of the Duke University Center for Firearms Law, Andrew Willinger, tells the Sun that the justices are poised to clarify their “historical tradition” test this year when they decide a case from the Fifth Circuit. 

The Fifth Circuit has taken up two cases that have shed some light on how jurists are working to reach consensus on the implementation of the “historical tradition” test: United States v. Rahimi and United States v. Daniels.

Rahimi, which has been appealed to and has been heard by the Supreme Court, deals with the case of a Texas man who was charged with having firearms while under a restraining order from his ex-girlfriend for domestic violence. The Fifth Circuit ruled that the man in question, Zackey Rahimi, could not be charged with that offense under the Bruen test. 

Mr. Willinger says that while the Rahimi decision is unlikely to have any impact on Mr. Biden’s case, it is possible that it could lead to a clarification from the court on the issue of the drug user prohibition. 

“It’s relatively unlikely the court’s decision in Rahimi could conclusively decide one way or another the statute that Hunter Biden is violating — this ‘unlawful user’ prohibition — is unconstitutional. My impression from the oral argument … is that the justices were inclined to side with the government to reverse the Fifth Circuit and say that the domestic violence prohibition in that case is constitutional.”

Mr. Willinger still believes that the Originalist justices — whether it be Justice Thomas or another member — could issue concurrences or dissents that serve Mr. Biden well. “You could envision a scenario where the court issues a decision that is relatively narrow, but where a number of justices issue separate concurrences where they talk about their own views on the Bruen test,” he says. 

In Daniels, a three-judge panel found that a Mississippian, Patrick Daniels, could not be prosecuted for owning a firearm and admitting to past drug use. That opinion for the Fifth Circuit 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.

Mr. Willinger says that while the Daniels case is unlikely to be heard by the justices of the Supreme Court, it could offer some clarification about what kind of drug use — past or present — is permissible when owning or possessing firearms, which could help Mr. Biden’s case. 

“More specifically to the Hunter Biden case is … the Daniels case where the Fifth Circuit struck down the ‘unlawful user’ prohibition,” Mr. Willinger said, noting that the Supreme Court may have the circuit rehear the case in the wake of Rahimi. “That’ll be really one to watch where you have the Fifth Circuit rehearing or deciding the case again in light of what the court says in Rahimi.”

The Daniels case could be especially important for Mr. Biden’s defense, given that Special Counsel David Weiss’ office has argued — backed up by photographic evidence — that Mr. Biden was on drugs when he purchased the weapon. 

Originalists know that the Framers never placed any restrictions on, say, alcoholic Revolutionary-era Americans from buying and possessing firearms while they were sober. Is it possible — if only that — to imagine that originalists on and off the court could come to Mr. Biden’s defense, regardless of partisan politics?