On January 28th, 2022, Matt Hoover of the CRS Firearms YouTube channel was taken into custody by U.S. Marshalls after the ATF sought and obtained an indictment against him. He is charged with helping to sell and distribute machine guns illegally by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. This case is little-known outside of the Second Amendment community, but its result will have big repercussions. Let's get into the weeds and explore just what is happening.
Prior to being arrested, Matt Hoover entered into a business deal with Kristopher Ervin, the owner of a business called 'Auto Key Card.' Auto Key Card produced credit card-sized stamped pieces of aluminum with the shapes of an Auto Sear etched into them. They were not machined, they were not completed, nor did they come with instructions on how to use them. When cut out, assembled, and added to specific AR-15s, these devices allowed for fully automatic fire with the firearms.
Right now, you're like, wait wait wait... This all seems pretty cut and dried; what's the big deal? But that's only the beginning of the story. Matt Hoover, who runs the popular YouTube gun review channel 'CRS Firearms,' wasn't actually selling or distributing the product. He wasn't filling orders, he wasn't warehousing product or producing the auto key cards, and he wasn't shipping/distributing them. Matt was simply paid to ADVERTISE them. Under this agreement, the ATF has charged Matt with knowingly distributing and selling machine guns.
So, this sounds crazy, right? It is. It absolutely is. The ATF's goal here was two-fold: kill the auto key card dead immediately and also make an example out of a prominent YouTube Second Amendment content creator to chill free speech.
This is similar to what several Leftwing Senators are currently doing to other YouTube Second Amendment content creators. So, what EXACTLY is an auto key card? Let's take a more in-depth look because that helps the reader understand just why this is such insanity and how weak this case against Matt Hoover really is. Well, let's let Matt Hoover himself tell you exactly what an Auto Key Card is. Here is a link to the video explaining an Auto Key Card.
The short version is that it's a 0% completed auto sear for creating a machine gun. Specifically, it is the part that turns a semi-automatic rifle into a full-automatic machine gun.
Now, some very specific details need to be discussed. Most people consider the entire firearm itself to be a machine gun. That isn't technically or legally true, according to the ATF, who has taken it on themselves to illegally redefine what that is. They consider the part that allows a firearm to fire in fully automatic mode to be the machine gun itself, not the entire firearm. This is why the ATF went after bump stocks. It's why they are currently trying to ban and seize all Forced Reset Trigger systems for semi-automatic rifles, and it's why they have gone nuclear against Auto Key Cards. With the Auto Key Card, we are specifically talking about a credit-card-size piece of aluminum with a drawing etched on it. Nothing more.
Many of you right now are having a hard time visualizing what I am talking about. Consider that internally; a firearm is a series of linkages and springs that act together in concert to fire an ammunition cartridge. Now, consider that if you alter that system, you can change the rate of fire. One of the most prominent retail suppliers of firearms components, upgrades, and replacement/repair parts—Brownell's—has a short video showing you a completed auto sear/lightning link that the Auto Key Card can be used to create. You can watch their video here; it's about 3 minutes long and gives you a close-up look at it and describes the legality of the manufactured device. It's important to note that the device featured in the Brownell's video is 100% manufactured, and the Auto Key Card auto sear is 0% completed when shipped.
So, who cares, right? The ATF is going after illegal machine guns, right? Sounds like what they are supposed to do, right? Wrong. You see, Matt Hoover was charged, as was Kristopher Ervin, with selling COMPLETED machine guns—no distinction about the percentage of completion was made. The ATF arbitrarily made the determination on its own that these Auto Key Cards were machine guns despite them not being completed, as shown in the Brownell's video.
Why is this important? Well, to understand that, we need to take a look at the West Virginia v EPA case—which the U.S. Supreme Court just recently decided. In a landmark 6-3 decision, the U.S. Supreme Court decided against the EPA. It ruled that the EPA did NOT have the legal, regulatory authority to INTERPRET the Clean Air Act to give the EPA expansive power over Carbon Emissions. This landmark ruling will affect all Federal Regulatory Agencies, including the ATF. Wait, what? Yes, you read that right.
Chevron Deference is a legal doctrine that states that courts must rule in favor of government agencies—given their expertise—when a matter of law comes before a court and the agency uses regulatory power to interpret a vague statute. The U.S. Supreme Court in West Virginia v EPA ruled that unless Congress has specifically enumerated that power to an agency in writing, via legislation that is passed and signed into law by the President, Chevron Deference can not be used to justify or grant the expansive power to create new laws based on an agency's arbitrary interpretation of statutes. Specifically, the West Virginia v EPA ruling states that Chevron Deference cannot be used to make policy and regulations by an Executive Branch agency, where it has widespread or national economic or political significance to paraphrase the decision, found here.
Consider this: Auto Key Cards, Bump Stocks, and Forced Reset Triggers were not specifically listed under the National Firearms Act of 1934 as machine guns. They also weren't listed in the 1968 Gun Control Act; they didn't exist then. The ATF made arbitrary rulings completely reliant on Chevron Deference outside of its legal charter and authority. This is the crux of the matter; the ATF sees these as unregulated end-runs around the de facto ban on arms that fall under the 1934 National Firearms Act—passed and signed into law under Franklin Roosevelt. As admitted in a Congressional hearing leading up to the passing of the 1934 National Firearms Act, the U.S. Attorney General at the time admitted under oath that the NFA was meant to be a DE FACTO BAN using prohibitively high taxes on those devices to put them out of reach of ordinary Americans.
During the 1930s, crime using automatic weapons like the Thompson Sub Machine Gun and the Browning Automatic Rifle was common because of Mafia trafficking in bootleg liquor under prohibition. The 1934 National Firearms Act (NFA for short) was intended to ban them without really banning them. They created a registry system that required an abusive prohibitively high tax to be paid to own them and created the ATF to regulate them and the bootleg liquor itself. This was the first instance of the Federal Government using taxes to systematically ban things they sought to keep from the general public. This tactic has been used by many of the 50 states to continue to erode and deny second amendment rights. For example, the New York and Illinois scheme to force citizens to pay for costly training and permits—only then deny them those permits on hurdles the states put in place as a method to block issuance.
Under the recent U.S. Supreme Court decision against New York State—New York State Rifle & Pistol Association v Bruen—the high court ruled that the scheme the state of New York had created in using a two-step process for determining if a citizen would be issued a permit to carry a firearm in the state was unconstitutional. They ruled that the two-step approach determining first if a person was not a felon and thus had the right to a firearm, and the following second step with several hurdles used to deny a permit in bad faith was unconstitutional.
The YouTube Second Amendment channel 'Armed Scholar' has a brilliant legal analysis of the Bruen case and how it specifically applies to the Hoover case here. The short version is that the Bruen decision has specific language in it—authored by Justice Clarence Thomas— explaining in explicit detail that gun control regulations and laws must be viewed by the courts interpreting the Second Amendment text in historical context, and all restrictions must be weighed based on if there is historical tradition within the Second Amendment supporting the laws/restrictions. In other words, courts like the 9th Circuit, which were famous for using contorted 'modern' interpretations of what the Second Amendment said; interpretations that explicitly contradicted the wording of the Amendment as written in the Bill of Rights, would no longer be able to do so. The High Court ruled in Bruen this was in itself a violation of the Second Amendment, and the lower courts were to use the explicit 'one step' instructions defined in the Bruen decision. But we'll revisit this in a little bit.
Here are the problems the ATF is now facing after the latest filing by Matt Hoover's legal team. First, the ATF made an arbitrary decision on the status of what the auto key card is, which is a clear violation of the ruling issued in West Virginia v EPA. It is an explicit violation of the Bruen case because no such regulations or tax schemes to deny any type of arms existed in tradition or law prior to 1934, and that law itself doesn't comport with the Bruen ruling. There's nothing historical that comports to anything like the NFA.
In a related problem for the ATF, the West Virginia v EPA case will also impact their upcoming rule change regarding 80% frames and receivers. The ATF made the same type of arbitrary determination of what constitutes a firearm in contravention of the 1968 Gun Control Act, reversing a definition of 80% frames that had been accepted and in use for years. The legal definition of a frame or receiver is defined in the 1968 Gun Control Act, a law passed by Congress and signed into law by the elected President at the time. But at the direction of the Biden White House, the ATF arbitrarily changed the definition of a firearm receiver/frame to specifically target 80% frames, or what the left refers to as 'ghost guns'. The new ATF rule set to take effect in August will be directly impacted by the West Virginia v EPA decision.
In fact, there are examples of the Founding Fathers owning artillery cannons (much to Joe Biden's surprise), as well as fully armed, privately owned warships. Private ownership of automatic weapons prior to the NFA being passed was also common. This case specifically deals with a Federal Administrative/Regulatory Agency with police powers, relying on Chevron Deference legal doctrine to issue an arbitrary, abusive, illegal, unilateral declaration. Essentially they have said that an alleged drawing of a component on a piece of sheet metal is illegal and that the mere possession of the drawing would put the owner at risk of a lengthy prison term, all because they've interpreted the law in a way it wasn't intended. Another issue is that the ruling was ex post facto to the possession of the device and that by itself is outside the bounds of law and illegal. The ATF made up a rule criminalizing Auto Key Cards out of thin air, then charged Matt Hoover and Kristopher Ervin after the fact with felonies, putting both men in jeopardy of spending the next 64 years in federal prison.
Again, remember that Matt Hoover simply discussed the Auto Key Card on his YouTube channel and posted advertisements for it. The ATF is running into serious issues with both Bruen and West Virginia. The ATF thought Matt Hoover was an easy target even though the case was weak; they were clearly relying on Matt's inability to have the funds to afford put a significant defense in Federal court. The goal in charging Matt was the suppression of Second Amendment-related free speech and to chill other content creators discussing similar modern technology on social media, such as 80% frames and receivers.
I agree with the attorney who runs the Armed Scholar YouTube channel, Anthony Miranda, when he says that it's unlikely a Federal Court will grant the motion and, subsequently, in granting it, kill the NFA. But this sets up an interesting appeal because it will most certainly be headed to a Federal Appellate court who would take up this case based on the interesting constitutional grounds, coupled with the challenges made under Bruen and EPA and could work its way up to the high court itself. The U.S. Supreme Court would have a keen interest in this case, given that two of its most recent landmark decisions are clearly relevant here. It seems clear that this case will have dramatic ramifications on both the gun control landscape and on Federal Regulatory powers.
There are also several other cases in court right now that intersect this case. Currently, the U.S. Supreme Court granted a writ of Certiorari, vacated, and remanded several other Second Amendment cases to lower courts. Among them are the Association of New Jersey Rifle and Pistol Clubs v Bruck, Bianchi v Frosh, and Duncan v Bonta cases. These are magazine ban cases—cases suing over the constitutionality of assault weapons bans and one other case in Hawaii fighting denial of a permit to carry.
It seems clear that the U.S. Supreme Court is signaling to lower courts that they will no longer accept the courts' judicial activism in restricting rights and siding with states with a history of attacking the Second Amendment or rubber-stamping government agency overreach. This is crucial; the language in Bruen and in West Virginia is not only a rebuke of government over-reach but seems a clear message to the lower courts. The high court is now willing to have the fight over lower court judicial activism and is daring them to defy, so they can then accept the cases on appeal and put an end to the activism.
Clarence Thomas himself had previously tackled this in another case, discussing in a dissent how the court would need to eventually deal with judicial activism, noting, in particular, lower courts use of politically-motivated national injunctions. This was discussed in a Lawfare Blog piece on the Trump Travel Ban case. In other words, the Bruen and EPA cases both seem like they are set to force a reckoning with the lower courts by forcing them into compliance with landmark cases, either by remanding cases to use the correct jurisprudence or through overturn on appeal decided by the high court itself.
Stay tuned; more to come on this matter as it winds its way through the courts.
Other helpful links to understanding this case:
Bruen decision: EPA decision: Democrat Senators illegally trying to chill Second Amendment Free Speech on YouTube:
Democrat Senators illegally trying to chill Second Amendment Free Speech on YouTube: