Hunter Biden’s high-powered legal team is demanding a new trial in his Delaware gun case, firing a long volley of arguments — technical, procedural, and constitutional — to argue that the first son was wrongfully charged, tried, and convicted of firearms felonies.

Core to Monday’s filing, made to the presiding jurist, Judge Maryellen Noreika, is the defense’s contention that Judge Noreika began the process without proper authorization. The judge has so far been unsympathetic to Biden’s myriad motions for relief from the court. 

“When this Court empaneled the jury on June 3, 2024 and proceeded to trial, it was without jurisdiction to do so,” Biden’s lawyer, Abbe Lowell, writes in a Monday court filing. Because Biden submitted an appeal before the trial began to the Third Circuit Court of Appeals and the panel of judges had yet to hand down their opinion, Judge Noreika should have been barred from beginning the trial, Mr. Lowell says. 

Biden first appealed his case to the Third Circuit on April 17, but a panel of three judges — appointed by President George W. Bush, President Biden, and President Obama — ruled that Biden’s case was “not appealable” at the time. The first son’s attorneys argued that a “sweetheart plea deal” — as Republicans called it — that had collapsed under scrutiny from Judge Noreika was actually still in effect, that he was being “vindictively” prosecuted, and that Special Counsel David Weiss had been appointed illegally. 

Biden’s attorneys made those arguments to Judge Noreika — an appointee of President Trump who was a registered Democrat until 2020 — all of which she dismissed. The appellate court declined to rule on the merits of those arguments, saying only that Judge Noreika’s rulings were not appealable until “final judgment” had been handed down.

On May 20, Biden asked the Third Circuit in a separate appeal to affirm his Second Amendment right to own a gun while using crack cocaine, which Mr. Lowell says is permissible under the historical consistency standard set forth in New York State Rifle and Pistol Association v. Bruen, a landmark 2022 Supreme Court decision authored by Justice Clarence Thomas. 

Again, the Third Circuit dismissed that appeal, saying that Biden could only make the Second Amendment argument after the district court jury reached a conclusion. “The defendant’s Second Amendment defense does not implicate a right not to be tried,” the appellate court panel wrote on May 28. 

Biden’s attorneys are also now arguing that Judge Noreika improperly empaneled the jury at the Delaware district court on June 3 to kick off the trial. They argue that the appellate court had not issued its mandate in their dismissals of Biden’s appeals, meaning that the case was actually still with the Third Circuit and that Judge Noreika had no jurisdiction at the time that the trial began. 

According to the American Bar Association, appellate court mandates are the official close of any appeals proceeding, which can come “weeks or months” after the decision is handed down. 

“Once the decision issues, and assuming no party intends to seek rehearing, the appeal is generally considered over. But it is not,” the ABA says. “Even then, the case remains under the appellate court’s jurisdiction until it is officially closed, usually weeks or months after the decision was rendered. That necessary, final step is marked by issuance of the mandate.”

Biden likely has a lengthy appeals process in store for him that could make its way all the way to the Supreme Court if the Second Amendment considerations are heard. Justice Thomas wrote in Bruen that all firearms regulations must be “consistent” with the nation’s history of firearms regulations, though he and the court failed to lay out a detailed historical test for analyzing those regulations. 

Yet only last week, in United States v. Rahimi, eight of the nine justices joined an opinion authored by Chief Justice Roberts that held that a felon, Zackey Rahimi, was ineligible to own or possess a firearm while under a domestic violence restraining order, a charge on which he was convicted. Rahimi’s attorneys had successfully argued to the Fifth Circuit Court of Appeals that Rahimi’s Second Amendment rights under the new Bruen standard could not be infringed upon simply because he had a restraining order levied against him. 

Justice Thomas was the lone dissenter in the Rahimi case. 

The decision could undermine Biden’s Second Amendment defense, but Biden could make — and has made, to Judge Noreika and the Third Circuit — the argument to the Supreme Court in the coming years that the federal prohibition on drug users from buying and possessing firearms is unconstitutional.