Matthew Hoover was indicted back in January alongside Kristopher Ervin of Florida for selling auto sears under the name Auto Key Card, which was marketed as a bottle opener. The feds contend, however, that the marketing of the card was simply intended to mask its real purpose; converting AR-15s into machine guns.

The cards came laser engraved showing the parts of an AR-15 automatic connector, commonly known as a “lightning link.”

The lightning link, when assembled from its separate components and installed in an AR-15, could convert it to full-auto without any additional modifications to the firearm.

Because of this, the ATF decided the cards were close enough to auto sears to fall under the machine gun restrictions under the Firearms Owners’ Protection Act amendment of the National Firearms Act.

Under the original NFA, machine guns could still be purchased, although additional paperwork and the payment of a $200 tax was required. When the Firearms Owners’ Protection Act was signed into law in 1986, however, all new machine guns were banned for purchase by civilians, and building your own is a federal no-no as well.

Now attorneys for Hoover are arguing that, based on the Supreme Court’s decision in Bruen, the indictment should be thrown out because the constitutionality of the machine gun restrictions have been called into question.

What makes Bruen particularly germane to the instant matter is the announcement of a clear legal standard for the evaluation of acts regulating the peaceable keeping and bearing of arms. Bruen identified the Court of Appeals “coalesce[ing] around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-ends scrutiny”, the Court correctly identified this as “one step too many[.]

Those previous decisions at the various Courts of Appeal manifested deference to the Government in a manner unlike any other fundamental right, and the inexplicable consideration of regulations clearly contemplating the keeping and bearing of arms as beyond the scope of the Second Amendment.

… Finally, though, we have a standard which clearly articulates the burdens in a case involving restrictions on the right to keep and bear arms. It is, as artfully penned by the Court, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The Government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearms regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

The Department of Justice will undoubtably argue that fully-automatic firearms are not in common use, and are therefore both unusual and dangerous and fall outside of the scope of the Second Amendment. They can even point to Justice Antonin Scalia’s majority opinion in Heller, when he implied that “M-16 rifles and the like” because they are not and were not in common use by civilians at any point in time during our nation’s history. Hoover’s attorneys anticipate that argument and reject it in their new filing, arguing that “the court’s invocation of ‘dangerous and unusual weapons in Heller and subsequently Bruen was for the purpose of discussion of what might be a constitutionally acceptable law, rather than the endorsement of any particular extant policy.”

Rather, the only way a court may conclude Defendant’s conduct falls outside the scope of the Second Amendment’s unqualified command remains clear: the Government must prove the particular regime in question is consistent with the history and tradition of the United States.

Furthermore, the question of whether a weapon is “in common use at the time,” necessarily pins the analysis to the time before the prohibition. To consider otherwise would incentivize the Government to legislate wantonly and aggressively, seizing arms, then later evade constitutional scrutiny by suggesting that the arms cannot be in common use, because the Government prohibited them. Such circular logic would be inconsistent with any fundamental rights jurisprudence.

The request for dismissal goes on to argue that Hoover and his co-defendant aren’t accused of selling actual machine guns. Rather the ATF decided that the thin, credit card-sized piece of metal can become a machine gun if purchasers use a little elbow grease.

In addition to the previously raised Constitutional questions, nothing in the applicable history and tradition of the United States supports the categorical ban of machineguns, much less the item here at issue—a tchotchke the Government alleges might possibly, with transformative labor, one day become a machinegun. Further, the ATF’s decision that the tchotchke at issue—a stainless steel card with some lines lightly thereupon engraved—was a machinegun came completely by administrative fiat, absent even notice and comment. Our Nation’s history and tradition does not, and cannot, support a finding that an alleged drawing of a part is that part merely because an unelected bureaucrat unilaterally willed it to be. To hold otherwise would be to grant the Bureau more power than Congress could have ever granted it, and make innumerable items potentially illegal.

The attorneys for Hoover then cite testimony given by then-Attorney General Homer Cummings in 1934 during debate over the NFA.

MR. LEWIS: I hope the courts will find no doubt on a subject like this, General; but I was curious to know how we escaped that provision in the Constitution.

ATTORNEY GENERAL CUMMINGS: Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say “We will tax the machine gun” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated”, you are easily within the law.

MR. LEWIS: In other words, it does not amount to prohibition, but allows of regulation.

ATTORNEY GENERAL CUMMINGS: That is the idea. We have studied that very carefully.

In other words, the NFA was intentionally never designed to be an outright ban on the possession of machine guns, but the Hughes Amendment to FOPA changed all that by banning the possession or purchase of any automatic firearm manufactured after FOPA became law.

It’s a good argument, but whether or not the judge goes for it is a different story. My gut tells me that we’re going to get the same reliance on Scalia’s aside in Heller to keep the charges against Hoover in place for now, but I’m very interested to see what happens if and when this case goes to trial. It’s hard to argue that the NFA is “longstanding” when the Court just threw out a New York law that’s twenty years older, and I’m not aware of any historical analogues to the Hughes Amendment that could come into play, which makes this case one to watch going forward.