One federal appeals court ruled that Hunter Biden’s 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 President’s 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 didn’t 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 Court’s 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 father’s opponent in November’s election. However, the panel didn’t 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 Hunter’s 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. Duarte provides some more ammunition for Hunter’s 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 2022’s New York State Rifle and Pistol Association v. Bruen, the majority decided there wasn’t enough evidence the defendant’s previous crimes would have resulted in a lifetime gun ban at the time the Second Amendment was adopted.

“Duarte’s underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding,” the panel wrote. “Duarte’s second predicate offense—felon 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 Duarte’s remaining convictions—drug possession and evading a peace officer—we 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 Duarte’s 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 country’s history.”

Biden’s 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. Biden’s alleged violation of that unconstitutional statute baseless, it compels the same conclusion as to the prosecution’s 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 in US v. Biden reads.

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 person’s 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.”

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

“The Bruen framework 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 who’ve 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 Biden’s case goes to trial.