Appeals Court Rejects Hunter Biden’s Last-Minute Bid to Dismiss Federal Gun Charges

A panel of three judges said the president’s son could appeal after the trial.

Hunter Biden, son of President Joe Biden, listens as his attorney Abbe Lowell makes a statement to the press following a closed-door deposition before the House Committee on Oversight and Accountability, and House Judiciary Committee in the O'Neill House Office Building in Washington on Feb. 28, 2024. Samuel Corum/Getty Images

A federal appellate court on May 28 rejected Hunter Biden’s appeal to have his felony gun charges dismissed as he faces trial in Delaware next week.

Mr. Biden is facing three counts of federal firearm offenses, which stem from his purchase and brief possession of a handgun in 2018 while struggling with drug addiction.

He had argued that the charges should be dropped on Second Amendment grounds, citing the U.S. Supreme Court’s newest standard for determining the constitutionality of firearm regulations.

But the U.S. Court of Appeals for the Third Circuit rejected Mr. Biden’s bid, stating that his appeal was premature and should be addressed after the trial, which is set to begin on June 3.

“The defendant’s Second Amendment defense does not implicate a right not to be tried that can be collaterally appealed,” a panel of three judges wrote in the May 28 order.

“Constitutional defenses, like the defendant’s Second Amendment defense, can be effectively reviewed on appeal after final judgment.”

The panel consisted of Judge Thomas Hardiman, an appointee of President George W. Bush; Judge Cheryl Ann Krause, an appointee of President Barack Obama; and Judge Arianna Freeman, who was appointed by Mr. Biden’s father, President Joe Biden.

Justice Department special counsel David Weiss, who is leading the prosecution of Mr. Biden, secured the indictment after a plea agreement fell apart in July 2023. According to Mr. Weiss’s team, the agreement would have allowed Mr. Biden to avoid prison by requiring him to enter a pretrial program for a gun charge that could have been dismissed if he complied.

The federal gun charges could result in a sentence of up to 25 years in prison, although first-time offenders are typically given shorter terms.

Specifically, the indictment charged Mr. Biden with three felonies: lying to a federally licensed gun dealer, which carries a penalty of up to 10 years in prison; making a false claim on a federal firearms background check form, which carries a maximum possible prison term of five years; and keeping an illegally obtained gun for about 11 days, which is punishable by up to 10 years.

Defense Argument

Mr. Biden’s defense attorneys have argued that the federal law prohibiting firearm purchase and possession for drug users might not stand the test laid out in a U.S. Supreme Court landmark decision last summer.

In New York State Rifle & Pistol Association v. Bruen, the high court introduced a two-step framework for evaluating Second Amendment challenges. The test first requires the court to determine whether the Second Amendment’s “plain text” covers an individual’s conduct. If so, then that conduct is presumptively protected, and the government must prove that its law is “consistent with this Nation’s historical tradition of firearm regulation.”

Applying the Bruen framework, Mr. Biden’s legal team argued that the federal gun restrictions on drug users are unconstitutional because there is no “historical precedent for disarming citizens based on their status of having used a controlled substance.”

U.S. District Court Judge Maryellen Noreika of the District of Delaware disagreed. In her initial ruling that denied Mr. Biden’s initial request to throw out the charges, she wrote that laws against drug users’ buying and owning guns appear to be “consistent with this country’s historical tradition of firearm regulation.”

However, the Trump-appointed judge said Mr. Biden could bring the Second Amendment argument specific to his case in an appeal after the trial, once the merits of his case had been established.

Before the Bruen argument, Mr. Biden’s team had asked the district court to dismiss the charges for three other reasons, including an allegation that prosecutors were under pressure from Republican lawmakers who began an impeachment inquiry into Mr. Biden’s father. Judge Noreika denied all those requests.

The gun charges are not the only legal problem that Mr. Biden has to address. His now-collapsed plea bargain would also have allowed him to plead guilty to two misdemeanors for failing to pay his taxes in 2017 and 2018. Instead, he has to stand trial on six federal tax charges in California.

The California trial was originally scheduled to start on June 20. A judge has granted Mr. Biden’s request to delay the California trial to Sept. 5, giving his defense attorneys more time to prepare.