Charge in Autokeycard Case Unconstitutional Under Second Amendment: Motion to Dismiss

U.S.A.-(AmmoLand.com)-— The Supreme Court decision in Bruen sets an appropriate standard for evaluating laws that violate a fundamental, enumerated right protected by the Constitution in the Second Amendment.

When there is a challenge to a federal or state rule, law, or regulation claiming such rule, law, or regulation violates the Second Amendment, the court is to evaluate the law based on the historical tradition of firearms regulation. It is up to the State to prove the longstanding history and cultural acceptance of such laws, rules, and regulations. If the State cannot prove such history and acceptance, the laws, rules, or regulations as of the date of ratification in 1791, or possibly, the date of ratification of the Fourteenth Amendment in 1868, are invalid under the Second Amendment.

One of the first legal challenges submitted to a court, relying on the Bruen decision, was from the defense representing CRS Firearms in what is commonly known as the Autokeycard case.

The new brief filed by Hoover’s legal team is a motion to dismiss the case and declare the National Firearms Act or NFA unconstitutional.

The brief relies on the recent Supreme Court decision in the New York State Pistol and Rifle Association v. Bruen. The main focus in Bruen was the right of an individual to carry a firearm outside the home for self-defense, but in addition to confirming that right, SCOTUS also ruled that the two-step process that courts have been using in Second Amendment cases was also unconstitutional.

This correspondent initially considered the motion to be a “hail Mary” type long shot. After reading the motion, it is a well-reasoned and crafted brief that gives the court several options to dismiss the case.

From the motion to dismiss:

Defendant is charged under 18 U.S.C. 5861 and 5871, as well as conspiracy to commit those offenses. The charged statutes deal with the taxation and transfer of machineguns, and other weapons. The Government alleges the tchotchkes at issue  —the “auto key cards”—  to be machineguns.  What’s more, actions subsequent to the passage of the charged firearm statutes render it impossible to comply with the taxing provisions, thus leaving the statutes a bizarre, vestigial area of law passed pursuant to the taxing power which — in dubious constitutionality — is used by the Government as an independent effective prohibition on the sale, transfer, or possession of any controlled devices not registered by 1986.

The brief to dismiss hands the Court several theories to dismiss the charges against CRS Firearms. Each one is an incremental step toward dismantling the egregiously unconstitutional and irrational body of regulatory law, which has been erected on a fragile foundation of the federal authority to tax.

The motion shows the regulatory change declaring the autokeycard a machinegun is very recent. It was created by regulatory fiat. It is not supported by any cultural history.

Autokeycard.com Seized By the ATF, Owner Arrested For Selling A Drawing
Autokeycard.com Seized By the ATF, Owner Arrested For Selling A Drawing

The motion shows that the 1986 ban on collecting taxes from the purchase of machineguns made after 1986 was ahistorical and unprecedented. The motion shows the 1986 law made it impossible for people to conform with the requirements of the 1934 National Firearms Act.

The motion shows the 1934 NFA was of dubious constitutionality because it depends on the taxing authority, deliberately crafted to undermine Second Amendment protections.

If the court decides to dismiss the case, it could do so under several theories:

  • 1. It could declare the regulatory decision to declare the Autokeycard a machine gun to be an invalid expansion of regulatory power, violating the First Amendment and the Second Amendment;
  • 2. It could declare the 1986 ban on the purchase of machine guns due to the inability of the ATF to collect taxes from the sale of machine guns under the National Firearms Act to be ahistorical and invalid under the Second Amendment.
  • 3. It could declare the 1934 NFA and subsequent acts to be ahistorical and invalid as an expansion of taxing power to undercut the Second Amendment.
  • 4. It could declare the 1934 NFA and subsequent acts as ahistorical and invalid violating the Second Amendment.

Analysis:

Courts have historically been unwilling to make large policy decisions (unless massively supported by the dominant media and political power).

The Courts usually take the lowest hanging fruit, requiring the least disruption of the law, on the theory a small bite is easier to swallow than a large bite.

In the Autokeycard case, the path of least resistance may be to cite the First and Second Amendments, and the recent West Virginia v EPA case, to say the ATF overstepped its regulatory limits when it declared the autokeycard to be a machinegun without proper notice and procedure, and dismiss the case.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has meteorology and mining engineering degrees and retired from the Department of Defense after a 30-year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Arizona

The 2nd amendment recognizes and protects the right of Americans to own machine guns and every weapon useful in modern warfare. Period. All gun control is unconstitutional. Further, a drawing is NOT a machine gun. And BATFE is NOT Congress, which makes laws, but has zero power to limit firearms.

Deplorable Bill

“A well regulated militia, being necessary to the security of the free state, the right of the people to keep and bear arms shall not be infringed.” The second amendment to the constitution of the United States of America, THE law of the land. Any law that goes against the constitution is null and void per the supreme court case of Marbury vs Madison THUS all firearms laws are unconstitutional and thus they are actually illegal and those who write them, judge them, lawyer them or enforce them are, according to the oath they took, treasonous and probably tyrannical. The… Read more »

barnjoer

AMEN BROTHER

Oldman

It is my hope and prayer that all of this BS about the gun grabbers will soon be over and that Bruen is going to be the spark that sets it all off. There are states, one of which I live in, that have so many ridiculous laws concerning firearms, one would have a whole lot of trouble complying, even if you were a law abiding citizen with no record of any kind. As Jesus said, If you do not own a sword, sell your outer garment and buy one. He did not specify whether or not it was a… Read more »

Bill

Hate the M16 and all its variants, but agree with all ow what you’ve said otherwise. And if you want to carry one, be my guest! No two of us are alike, no reason we should all be required to carry the same weapons. And any rifle beats no rifle, even if it is a .22 caliber.

Deplorable Bill

I am too old, shot up and crippled to carry a 762×51 M-14 AND a basic load anymore. For those who can, more power to you. I will grant that the 556 ctg. was never designed as a killing tool, it is, however a very good wounding tool that has the potential of taking more than one person off the battlefield with one shot. If you ever have to see the effects of this round on flesh you will know. We had the old M-16 or the M-16A1’s with the much slower twist rate. The ones I was issued had… Read more »

swmft

how about a box of 50bmg? it is a stopall out to 2500 yards
and yes a great scope is a must for us blind people, and yes I have a mattel 16 no fa thanks I will carry the 762×51 the 500yard advantage is worth every discomfort it may cause

Last edited 30 days ago by swmft
swmft

if you wondered about the 50 comment I just moved 14 talls shoulders feal like falling off…i know buy a pallet jack ….I have one cans were in the way to get it out…ppplppp

Russn8r

LOL. Officer Ope-TEX’s sock posse is on your jock hard. Over The Target!

Russn8r

Now he upvoted you. LOL. You’re welcome!

swmft

that is funny …why do he/she/it /they bother?

swmft

they dont like truth , I do know how deplorable bill feels broken bones and bullet wounds ,oddly the broken neck minimizes pain fucked range of motion cant shoot prone ..have a prop that works but not the same, broken eye socket makes for odd scope placement no one likes my long range and I can hit a mile with it fkm it is for me

Deplorable Bill

Very little beats a good Barret 50. I would LOVE to have one. The old Ma duce with a tripod was somewhere over 130#. It took 4 men and a mule to hump it and it’s ammo. A good 50 with 150-200 rounds, some good glass and a good spotter handles most anything far out. A good M-14 or M-1A still has enough oomph at 1,000 meters to put nice holes in uniforms. There is no arguing what they can do, I just can’t carry the weight like that anymore. I run a 7 Rem mag with 139g Berger V.L.D.… Read more »

swmft

i have one with a long barrel (42) working on the mile and a half shoulder hates me but I can get 1 in 7 ,when I am down to 1 in 5 im entering long shot competition

Deplorable Bill

Wow, I know how difficult it is @ a mile but one out of 7 @ a mile and a half on a d sized target is truly saying something. One out of five puts you in the pros, in the top 80% or better. When I load, I weigh EVERYTHING down to the tenth of a grain including cases. I actually segregate my brass and mark it with it’s weight. Never mix your brass. Even different lot numbers. This makes a big difference @ 1,000 meters and much more @ a mile. If you are not doing this I… Read more »

swmft

you even check runout ,everything has to be straight. off the shelf and military stuff is ok to 1000yards but you see the inconsistencies , you also need to mark how many times brass has been used you can see the changes with same brass, have some starline that i love batch is so consistent I could not believe it have a test gun and my toy test gun was only 5 better to blow that up, with the gun and parts reloading press for 50 is only for the 50 micrometer dies for seating it is a challenge, and… Read more »

Deplorable Bill

Agree 100% Run out, trim to length, case neck thickness. Seven rem mag tends to grow when it’s fired, I’m sure a 50 would do the same. Starline makes good brass. Nozzler brass is already prepped and then federal after that. Lake city tends to be very consistent as far as mill goes. I don’t know about a 50’s ogive to lands preference goes but with Berger vld’s in 7 mag, I hold 2 thousandths off the lands. Sounds like you know your gear. It is good to run open sights every so often. Happy shooting. Arm up and carry… Read more »

DDS

Cases also stretch when being resized. You can limit that to some extent by using an RCBS X sizer die.

https://www.rcbs.com/dies-and-shell-holders/rifle-dies/x-die-full-length-die-set/1000029.html

I’ve been using them on .30-06 and 7.62 NATO cases from Lake City and Prvi Partizan for some time and case stretch has been pretty much eliminated. YMMV.

Last edited 28 days ago by DDS
Deplorable Bill

I have never used these dies. From the reading that you provided they work. I have always done this the hard way; trimming after sizing. I know that the cases grow upon firing but if these dies can keep them at proper length that saves brass, weight and time. Thank you. Happy shooting

Arm up and carry on

john

Any person with mechanical skills could copy this illustration with the correct tools & make their own. This autokey card has been discussed here before in the past. The fact is local and state governments mostly the federal government continue to be exposed for overreach when it comes to our right to carry a firearm I would like to read that the constitution has been upheld for the content in that document which is very easy to read and understand. Those who wish to hold judgment over the American people because they disagree that we should all be able to… Read more »

Bill

Ends over deep and rough water, I suspect, too. 😉

Cruiser

What kind of BS games is our government playing? They arm our enemies in Afganistan, arm citizens in the Ukraine, and try to disarm lawful gun owners
here in America. You have one job. Stop your political BS and do what you can to make the American dream come true.

Tionico

NO I do NOT want gummit to “do what you can to make the American Dream come true”. NOT THEIR JOB.

Their job is to get out of the way so WE can make that dream come true. A good part of the problems today is precisely WHY we took up arms back in ’75. “they had a mind that they would tell us how we should live, and we had a mind that they woudn’t”.
They STILL have a mind to tell us how we should live, and THAT is what needs to STOP.

Roland T. Gunner

I think Cruiser meant “make the American Dream come true” as in “get the hell rid of the damned NFA.

Russn8r

Amen

Bill

Getting out of our way IS what they can do. Quit throwing roadblocks in front of us, keep us safe from invaders, etc. So far, not only can they not get even that one thing that is constitutionally mandated right, they’re not only not trying, they’re doing the opposite of what they’re supposed to do. PROTECT US FROM INVADERS!

Russn8r

Amen

nrringlee

Legal arguments aside the public must be made to understand one clear truth in the matter: gun control law depend upon the same kind of twisted and ill intended logic used to create the Jim Crow laws of the Reconstruction era. They depend upon taxes, fees and petty, insurmountable regulations to render enumerated natural rights moot by infringement. Build a regulatory wall hight enough and strong enough and citizens spend all of their time fighting the wall and not fighting the issues at hand. That is the methodology taught at the Jim Crow School of Law and Public Policy. And… Read more »

2gats

Who is going to sell the guns to the 87,000 new gestapo (irs) agents?
is that ok with you?

Ope

Those stupid assed IRS clowns can’t even handle Glock 19’s without one AD after another. Can you imagine what the consequences could be to the general public if these stupid sh*its were issued M4’s?

Watch um

What happened in Madison v Marbury?

Marbury v. Madison strengthened the federal judiciary by establishing for it the power of judicial review, by which the federal courts could declare legislation, as well as executive and administrative actions, inconsistent with the U.S. Constitution (“unconstitutional”) and therefore null and void.

Even though those laws that Congress passed in 1934 can be found to be unconstitutional by judicial review by Federal Court and the latest SCOUTS RULING remanded the unconstitutional laws that Congress passed or state laws which violate the 2nd Amendment are null and void

Russn8r

The arrogation that what’s unconstitutional or constitutional is whatever the SupCt says is itself unconstitutional. Everyone who takes the oath is obliged to ignore unconstitutional laws even if it means ignoring subversive SupCt decisions, which there are plenty.

Russn8r

Officer Ope of the downvote sock posse (TEX, Will, FordWill, Bruce et ilk) thinks the oath means “Just Follow Orders”.

Tionico

Something I find rther hilarious is that with all the kerfuffle over these “tchotchkes” (PERFECT word to describe them!!!) is that, with every article I’ve seen, there is a clear undistorted imge of the very item gummit are all kincker-be-knotted over. All anyone with a modicum of computer skills (I even think I could do it) to copy the image, then re-render it to print to paper. Then EVERYONE who wants to will have their OWN version of these key cards. Silly gummit, making such a fuss over nothing. Making their feeble and nonsensical selves to be even more ridiculous… Read more »

MP71

The feds are acting like one couldn’t find several different ways of making their own machine gun by spending less than an hour on the internet. I believe Phillip Luty’s manual on building an smg from hardware store materials is still floating around online.

DIYinSTL

Trying to have the NFA declared unconstitutional is swinging for the fences and runs a substantial risk of setting bad precedent. I don’t like the NFA. I don’t like that it took 14 months to get my latest $200 stamp. But take too big a bite and you can choke on it. I’d feel more comfortable taking a smaller step and having the Hughes amendment declared unconstitutional first even though it would be a significant financial loss to me. After all, if the SCOTUS can rule that short barrelled shotguns are not protected because they are [mistakenly believed to] not… Read more »

MP71

I think Hoover’s lawyer’s fully realize that their motion won’t necessarily cause the NFA to be overturned by the courts. There have been other cases where the government dropped charges when they feared that losing would set a precedent that would undermine the NFA or GCA. The most recent case I can think if(which I’m sure was covered by Ammoland) was a guy or guys in LA machining and selling 80% lowers. The defense put forth was that AR lowers aren’t firearms as defined by the GCA. The government knows gun control is a house of cards and will go… Read more »

swmft

the ar does not meet the definition in the law, upper or lower of a gun , and yes they have folded on many cases before they made the news because people had money and backing to get to scotus read buren, and the epa ruling combine them government agencies are attacking to try and spread money to keep scotus from a ruling that would make government actions unconstitutional all gun laws would be gone in a day many agencies would loose legal standing as former dea think most of what they do would fall to customs fbi is way… Read more »

Joe R.

“the court is to evaluate the law based on the historical tradition of firearms regulation.” To hell with that. A bona fide U.S. Citizen would have to spring from the womb, fully-formed and armed to the teeth, to beat back all of the ways in which their idyet aywhole neighbors who needed a job (their “gov’t”) infringed upon their great-great-great-great-great-grandfathers. To hell with all of that. They can pound regulation with a hand full of salt, or else they can be made to, as long as we’re being made to finally “decide stuff.” “On the notion of individual sovereignty one… Read more »

Last edited 1 month ago by Joe R.
Bill

I don’t see why anyone needs a fully automatic weapon. Unfortunately for those who think nobody should be allowed to have them, the 2nd Amendment to the Constitution reminds us that we have a God Given RIGHT to have them if we want or feel we need them. I don’t much like AR’s, either. Bad experience with an M16 in Basic Training. IMHO, the battle weapon I prefer is the one the USG issued for decades from 1903 until the mid-1940’s. Mind you, I said God Given Right. The Constitution does not give us rights. God does. Governments who do… Read more »

DDS

“I don’t see why anyone needs a fully automatic weapon.” Unfortunately, a statement like yours all too often preceeds something along the lines of “Because I don’t think you need one, you can’t have one.” The bottom line is that as long as you’re not going to use one for nefarious purposes, the Second guarantees you the right to own as many fully automatic weapons as you can afford. One of the guys who demanded an amendment guaranteeing that right before he would vote to ratify the Constitution said: “The power of the sword, say the minority…, is in the… Read more »

swmft

If you dont need one you trust government will be respectful of your rights…..I need hundreds and billions of rounds of ammo ,want the weight of the stuff I have put away to sink south florida so I have beachfront in polk county

Wild Bill

I sure do love it when someone understands my life circumstances so well that they can tell me what I need and what I don’t need.

Russn8r

Started out sounding like Bill Ruger, then improved nicely. By the way, I don’t see why anyone needs a banjo.

swmft

well without one we would not have the dueling banjos from deliverance/ what I could do without is bagpipes, sound like a dying calliope

Russn8r

Good point!

swmft

I like the garand and the m14 ,1917 is better than 1903 as bolt guns go I have both have an 03 in 3003, and a a3 in 3006 if you change early production 03 to 3006 you blow up the receiver not the same temper government found out the hard way my 1917 is an eddystone every time I take it out that poem goes through my head….my father was the keeper of the eddystone light…..