A fresh US Supreme Court gun-rights ruling should make a 78-year-old law regulating machine guns unconstitutional and invalidate a YouTube celebrity’s gun-crime indictment with an Orange Park man, his lawyers are arguing.
Lawyers for Matthew Hoover, a Wisconsin gun dealer whose YouTube channel has 148,000 subscribers, have asked US District Judge Marcia Morales Howard to dismiss his January indictment with Clay County resident Kristopher Ervin, who was charged last year with selling illegal machine-gun conversion equipment online .
Hoover’s lawyers asked Howard last week to rule that the National Firearms Act, a 1934 law that restricted machine gun ownership by creating a tax and license requirement on them, conflicts with the U Constitution’s Second Amendment guarantee of a right to bear arms.
They argued the law violates a standard the Supreme Court used last month to decide a New York law on gun ownership was unconstitutional, so the federal law must be unconstitutional too.
“Finally, though, we have a standard which clearly articulates the burdens in a case involving restrictions on the right to keep and bear arms,” attorney Zachary Zermay wrote in a motion he filed with co-counsel Matthew Larosiere.
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Referencing the high court’s June 23 ruling in New York State Rifle & Pistol Assn., et al. v. Bruensthe lawyers contended gun laws “can only be constitutional if the government demonstrates analogous restrictions deeply rooted in American history,” and said those roots should reach to 1791, when the Bill of Rights was passed.
Prosecutors hadn’t filed a response to the motion Thursday, and Howard hadn’t taken any action on the request.
To make their case, Hoover’s lawyers argued that statements from Congressional records when the National Firearms Act was created show the regulation was a new idea more than a century after the Second Amendment protection of firearms rights was adopted in 1791.
The motion quotes 1934 testimony to a US Senate committee by then-US Attorney General Homer Stille Cummings discussing reasoning behind the tax.
“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,” the motion quotes Cummings saying. “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.”
The 1934 act is today Title II of the federal government’s more expansive firearms law, with the Gun Control Act of 1968 serving as Title I. Invalidating the 1934 law would have wide impacts on federal efforts to control production and sale of automatic weapons.
The new defense motion is a supplement to a motion Hoover’s lawyers filed June 21, before the Supreme Court ruling. Even if Howard concluded the 1934 law was still constitutional, the lawyers also asked her to dismiss Hoover’s indictment, which involved him advertising small metal cards that Ervin made and sold under the product name Auto Key Card.
Prosecutors said the cards could be used to convert a semiautomatic rifle into a machine gun, but the lawyers argued the judge should weigh effects on both gun rights and Hoover’s free speech rights under the First Amendment.
“The standard announced in Bruens gives this Court the tools it needs to do so,” the lawyers added.