Lawyers for Matthew Hoover are arguing that the state charged him with the wrong crime in the Auto Key Card case. They also argued that if the conviction stands, any AR-15 could be considered a machinegun.

Matthew Hoover and Kristopher Justin Ervin were convicted and sentenced last year for selling a metal card with a picture inspired by a lightning link etched on it. Mr. Ervin ran the business producing the cards, and Mr. Hoover advertised the novelty gift on his popular YouTube Channel, CRS Firearms.

A lightning link is a device that inserts into a lower receiver of an AR-15, causing it to fire automatically with a single function of the trigger. According to the National Firearms Act of 1934 (NFA), any machinegun conversion device (MCD) itself is a machinegun. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) claims that the lightning link on the metal card is a template and itself is an MCD. Something that Hoover and Ervin reject.

Firearms Enforcement Officer (FEO) Cody Toy was the one for the ATF that examined the item. He admitted that he could not get the card to function as a lightning link when he cut out the design on the lines. What FEO Toy testified to is that to get the gun that he used to fire more than one shot with a single function of the trigger, he had to cause the firearm to malfunction to get hammer follow.

Mr. Hoover’s attorney, Matthew Larosiere, claims this is not automatic fire. In the new briefing, he argues that hammer follow is a malfunction that can happen for numerous reasons. His filing explains that hammer follow can occur if the disconnector of an AR15 is removed or is simply worn down. In the past, the ATF tested a firearm with a sliver of metal stuck in the fire control group (FCG) that caused a hammer follow malfunction.

Mr. Larosiere claims that the ATF has issued conflicting guidance on AR15-style rifles. He argues that if a hammer follow malfunction makes a machinegun, then all AR15 firearms might qualify as machineguns. A stance that the ATF has never taken.

“The ATF has been giving conflicting guidance on AR15s since the first time they saw one,” Larosiere told AmmoLand News. “It is fundamentally wrong for them to test new and extreme theories about what constitutes a machinegun in a criminal prosecution.”

The statute of the law binds the ATF. Although the ATF has tried to expand laws through the rule-making process and Chevron deference, it has largely been unsuccessful. In the landmark Supreme Court case Cargill, SCOTUS ruled that an ATF rule must follow the letter of the law, and the Bureau cannot expand a law. Also, SCOTUS knocked down Chevron deference in the Loper Bright Enterprises case.

Hoover’s lawyers also argued that he should not have been charged with violating 26 U.S.C.A. § 5861(e). That is the NFA. The NFA made it illegal to own a machinegun unless a person registers it with the ATF and pays a $200 fee for a tax stamp. His legal team argues that the government made it impossible for Hoover to comply with 26 U.S.C.A. § 5861(e) because the government closed the machinegun registry for private citizens for guns made after May 1986. The government wouldn’t accept the $200 or issue a tax stamp.

Mr. Larosiere highlights that the United States Attorneys’ Manual even says that machineguns should be prosecuted under 18 U.S.C.A. § 922(o), which made it unlawful to transfer or possess a machinegun made after May 19, 1986. That law is known as the Hughes Amendment, a part of the Firearms Owners Protection Act (FOPA).

The United States Attorneys’ Manual Reads:

Section 922(o) of Title 18 makes it unlawful to transfer or possess a machinegun made after May 19, 1986. In addition, under the NFA, it is unlawful to manufacture or possess a machinegun without first registering it with the Secretary of the Treasury and paying applicable taxes. 26 U.S.C.A. §§ 5822, 5861. As a result of the enactment of 18 U.S.C.A. § 922(o), the Secretary of the Treasury no longer will register or accept any tax payments to make or transfer a machinegun made after May 19, 1986. Accordingly, because it is impossible to comply with the registration and taxation provisions in the NFA, prosecutors should charge the unlawful possession or transfer of a machinegun made after May 19, 1986 under § 922(o).

It is unclear why Hoover and Ervin were charged for violating 26 U.S.C.A § 5861(e) instead of 18 U.S.C.A. § 922(o). Other people have been charged with violating 26 U.S.C.A § 5861(e), but they are also charged with 18 U.S.C.A. § 922(o). The choice to leave out the second charge is perplexing.

The government will have a chance to respond to the briefing. After that, the Eleventh Circuit Court of Appeals can decide to hear oral arguments in the appeal or issue a decision. There isn’t a timeline for either scenario.

About John Crump

Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.