Appeals court rejects Hunter Biden’s Second Amendment defense as premature

A federal appeals court dismissed Hunter Biden’s attempt to derail his upcoming trial on gun charges, ruling Tuesday that his claims of Second Amendment protection have to be argued later.

The 3rd U.S. Circuit Court of Appeals said the case is not yet at the stage where it can hear an appeal and Mr. Biden must face trial.

“The defendant’s Second Amendment defense does not implicate a right not to be tried that can be collaterally appealed,” the three-judge panel said. “Constitutional defenses, like the defendant’s Second Amendment defense, can be effectively reviewed on appeal after final judgment.”

The trial of the president’s son is set to start next week in a federal courtroom in Delaware. He is charged with possessing a gun as an unlawful drug user and with lying on the federal firearms purchase background check form about his drug use.

He argued that the Second Amendment protects his right to bear arms and that the federal law barring drug users from owning weapons is unconstitutional.

Mr. Biden’s lawyers acknowledged the argument was “novel,” but said the legal situation surrounding gun laws is “rapidly changing” and deserves some certainty before Mr. Biden faces trial.

The Supreme Court two years ago issued a landmark ruling in the Bruen case striking down state laws setting strict standards for who can obtain a concealed-carry permit. In that case, the justices said only gun restrictions envisioned at the time the Second Amendment was crafted are permissible.

Federal law includes prohibitions on felons, immigrants without documentation, those facing domestic violence protection orders, and unlawful drug users. Each of those prohibitions is being challenged in court cases, with the Supreme Court slated to run on the protective order situation this summer.

Mr. Biden’s lawyers said that after the Bruen case, courts must start with the assumption that every citizen has the right to possess a firearm. And they said letting Mr. Biden go to trial before that issue is settled would have a “chilling” effect on other potential gun owners.

“Apart from the harm of being convicted, the mere prospect of prosecution causes a distinct injury by inhibiting Biden and others who fear that prosecution under Section 922(g)(3) may follow the exercise of their Second Amendment rights,” argued Abbe David Lowell, Mr. Biden’s lawyer.

Mr. Biden’s Second Amendment defense was rejected by the trial court, and the appeals court said it had no jurisdiction to intervene in the case at this point.

U.S. Attorney David Weiss, serving as the special counsel prosecuting Mr. Biden, had urged the appeals to reject Mr. Biden’s request “not to be tried.”

“There is no right not to be tried under an unconstitutional statute,” wrote Derek Hines, senior assistant special counsel.