Hunter Biden’s defense attorneys are asking Judge Maryellen Noreika to unilaterally acquit the first son on grounds that the firearms statute which Mr. Biden is accused of violating is itself unconstitutional — an argument that will surely be deployed on appeal should he be convicted by a jury of his peers. Mr. Biden will also announce his decision on whether or not he himself will testify on Monday morning. 

In a filing sent to Judge Noreika, Mr. Biden’s attorneys are asking that she declare the federal statute unconstitutional under current Supreme Court precedent. “Mr. Biden moves this Court for a Rule 29 judgment of acquittal under the Second Amendment, as applied to him, and under the advance notice requirement of the Fifth Amendment’s Due Process Clause,” Mr. Biden’s lawyer, Abbe Lowell, writes. 

Mr. Biden has been charged with multiple felonies for lying about his drug use in order to purchase a gun in 2018. His lawyers are now arguing that the law prohibiting drug addicts from buying firearms is unconstitutional because of a 2022 Supreme Court decision that sharply limited states’ authority to restrict Americans from owning guns.

Before the trial began, Judge Noreika dismissed a similar request made by Mr. Biden that she nullify the indictment based on Second Amendment grounds. In the Supreme Court decision on which Mr. Lowell’s argument rests, 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. Lowell argued at the time 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 wrote. “The Supreme Court held that an individual’s right to possess a handgun is ‘presumptively’ protected by the Second Amendment.”

In his most recent argument for acquittal, Mr. Lowell cites a case from the Fifth Circuit Court of Appeals, United States v. Daniels. In that case, the defendant was convicted for being an “unlawful” user of drugs while purchasing and possessing a firearm. Ultimately, the Fifth Circuit reversed the conviction, saying that the statute — Section 922(g)(3) itself was unconstitutional. 

“Applying Bruen, Daniels found what the Fifth Circuit believed was valid historical precedent for prohibiting firearm possession while actively intoxicated, but it noted Section 922(g)(3) is 

‘substantially broader’ because it applies to ‘an undefined set of user[s],’ even if they are not under the influence,’” Mr. Lowell writes of the Fifth Circuit decision. “Daniels found historical precedent for an exception if a person was actively intoxicated and in possession of a firearm but noted that among these laws ‘none barred gun possession by regular drinkers,’ rather they focused on ‘the misuse of weapons while intoxicated,’” he continues.

Based on her prior ruling, it is unlikely that Judge Noreika will accept Mr. Lowell’s argument and acquit Mr. Biden unilaterally, but the Second Amendment argument he is deploying will likely be a centerpiece of Mr. Biden’s appeal, if he is convicted. Mr. Lowell could end up making that same absolutist Second Amendment argument to the very court that decided Bruen in the first place. 

On Monday, Mr. Biden will also announce if he will or will not testify in his own defense. Mr. Lowell said on Friday that the defendant had not yet made up his mind, and that the defense and prosecution would meet with Judge Noreika in private early Monday morning to discuss the logistics of the case after Mr. Biden makes his decision. 

The trial has already been jam-packed with damning and at times highly emotional testimony from members of the Biden family, including Mr. Biden’s ex-wife Kathleen Buhle; Beau Biden’s widow and the first son’s ex-girlfriend, Hallie Biden; an ex-stripper named Zoe Kestan who dated Mr. Biden;  and even the first son’s eldest daughter, Naomi Biden.

Mr. Biden was seen crying as his daughter recounted on the stand how he struggled with drugs and how he got sober. Earlier in the week, Mr. Biden’s half-sister, Ashley Biden was seen crying while the prosecution played audio of Mr. Biden narrating the audiobook of his addiction memoir, “Beautiful Things,” which the state is using against him.