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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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 »

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.

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 2 years ago by Joe R.
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 »

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.

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 »