Lawyers seeking to invalidate a Wisconsin-based YouTube celebrity’s gun crime indictment are citing a recent Supreme Court decision over gun rights, calling the state’s 78-year-old law regulating machine guns unconstitutional.
Attorneys for Matthew Hoover, a Wisconsin gun dealer whose YouTube channel has nearly 151,000 subscribers, have asked a judge in the U.S. District Court for the Middle District of Florida to dismiss his January indictment with Clay County, Florida, resident Kristopher Ervin, who was charged last year with selling illegal machine gun conversion equipment online.
Hoover’s lawyers asked U.S. District Judge Marcia Morales Howard earlier this month to rule that the National Firearms Act, a 1934 law restricting machine gun ownership by creating a tax license requirement on them, is at odds with the Constitution’s Second Amendment right to bear firearms.
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The attorneys cited the 6-3 high court ruling last month in New York State Rifle & Pistol Association v. Bruen, which deemed a strict and long-standing Empire State law on concealed gun carry ownership to be unconstitutional, saying the NFA law would also warrant a similar outcome.
“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 on July 1 with co-counsel Matthew Larosiere.
In reference to the June 23 Supreme Court ruling, Zermay and Larosiere argued gun laws “can only be constitutional if the government demonstrates analogous restrictions deeply rooted in American history.” The attorneys contend their position extends back to the 1791 passage of the Bill of Rights.
“The standard announced in Bruen gives this Court the tools it needs to do so,” the lawyers said.
The motion filed by Hoover’s counsel also cites 1934 testimony in the U.S. Senate by then-U.S. Attorney General Homer Stille Commings, stating his reason behind the tax license.
“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,” Cummings is quoted as 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 and the Gun Control Act of 1968 are the primary laws used by the federal government to enforce the regulation of firearms. If either federal law were invalidated by a subsequent ruling in this case, it would have sweeping implications for the federal government’s ability to control and regulate the production and sale of automatic firearms.
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If Howard finds the 1934 law is still valid, Hoover’s attorneys say the YouTuber shouldn’t face criminal charges, which surrounded Hoover’s advertisement of small metal cards that can be used to convert a semi-automatic rifle into a machine gun. The cards are made by Ervin and sold under the product name “Auto Key Card.”
Although prosecutors are alleging the cards can be used to convert semi-automatic rifles into machine guns, attorneys for Hoover say the judge should consider the impact on both Second Amendment rights and Hoover’s free speech rights backed by the First Amendment.
Prosecutors have not filed a response to the July 1 motion, and Howard has not taken action on the request.
