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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CASE №: 3:21-cr22(S2)-MMH-MCR

UNITED STATES OF AMERICA,

v.

MATTHEW RAYMOND HOOVER,

/
SUPPLEMENT TO MOTION TO DISMISS & TO DECLARE
UNCONSTITUTIONAL THE NATIONAL FIREARMS ACT OF 1934
Defendant Matthew Raymond Hoover (“Defendant”), in light of the

Supreme Court’s recent decision in New York State Rifle & Pistol Assn., et al.

v. Bruen, 597 U.S. __ (slip op., 2022), respectfully supplements his Motion to

Dismiss Counts 1 – 7 of the Indictment (ECF 57) against him. This Motion is

based on the aforementioned Motion and its attachments; the Supreme Court’s

recent decision; and the text of the Constitution, as informed by the history

and tradition of the United States. In support of this Motion, Defendant hereby

states:

I. THE SUPREME COURT’S LANDMARK BRUEN DECISION

FUNDAMENTALLY CHANGES THE INSTANT MATTER

a. THE BRUEN DECISION AND ITS LEGAL STANDARD

Bruen held as unconstitutional New York’s 1911 Sullivan Act, requiring

a license and demonstration of “proper cause” for the possession and carrying

of a concealable firearm. Bruen, 597 U.S. __ at *2. What makes Bruen

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particularly germane to the instant matter is the announcement of a clear legal

standard for the evaluation of acts regulating the peaceable keeping and

bearing of arms. Bruen identified the Court of Appeals “coalesce[ing] around a

‘two-step’ framework for analyzing Second Amendment challenges that

combines history with means-ends scrutiny”, the Court correctly identified this

as “one step too many[.]” Id. *9-10. Those previous decisions at the various

Courts of Appeal manifested deference to the Government in a manner unlike

any other fundamental right, and the inexplicable consideration of regulations

clearly contemplating the keeping and bearing of arms as beyond the scope of

the Second Amendment. Id. *14 (reading case law to “necessarily reject[]”

intermediate scrutiny in the Second Amendment context, further positing that

a “constitutional guarantee subject to future judges’ assessments of its

usefulness is no constitutional guarantee at all.”) (quoting Heller v. District of

Colombia, 554 U.S. 570 at 634 (2008)).

Finally, though, we have a standard which clearly articulates the

burdens in a case involving restrictions on the right to keep and bear arms. It

is, as artfully penned by the Court, “when the Second Amendment’s plain text

covers an individual’s conduct, the Constitution presumptively protects

that conduct. The Government must then justify its regulation by

demonstrating that it is consistent with the Nation’s historical tradition of

firearms regulation. Only then may a court conclude that the individual’s
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conduct falls outside the Second Amendment’s ‘unqualified command.’”

(cleaned up) (emphasis added).

To summarize: any law, regulation, or government policy affecting the

“right of the people to keep and bear arms,” U.S. CONST., Amend. II, can only

be constitutional if the Government demonstrates analogous restrictions

deeply rooted in American history evinced by historical materials

contemporaneous with the adoption of the Bill of Rights in 1791. Bruen, 597

U.S. at *29.

b. THE STATUTES HERE AT ISSUE AFFECT CONDUCT

COVERED BY THE SECOND AMENDMENT’S
“UNQUALIFIED COMMAND”
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.

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The Government may attempt to argue that machineguns are beyond

the scope of the Second Amendment by attempting to characterize them as

“dangerous and unusual,” as it has in other cases, but this is not the test. The

court’s invocation of “dangerous and unusual” weapons in Heller and

subsequently Bruen was for the purpose of discussion of what might be a

constitutionally acceptable law, rather than the endorsement of any particular

extant policy. Bruen, 597 U.S. at *12 (Clarifying that the Court was not

undertaking “an exhaustive historical analysis…of the full scope of the Second

Amendment”) (quoting Heller, 554 U.S. at 627). Rather, the only way a court

may conclude Defendant’s conduct falls outside the scope of the Second

Amendment’s unqualified command remains clear: the Government must

prove the particular regime in question is consistent with the history and

tradition of the United States. Id at *15. Furthermore, the question of whether

a weapon is “in common use at the time,” necessarily pins the analysis to the

time before the prohibition. To consider otherwise would incentivize the

Government to legislate wantonly and aggressively, seizing arms, then later

evade constitutional scrutiny by suggesting that the arms cannot be in common

use, because the Government prohibited them. Such circular logic would be

inconsistent with any fundamental rights jurisprudence. Thus, the

Government has the burden to prove that the regime in question is consistent

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with the history and tradition of firearms regulation in this country around the

founding era.

c. THE LAWS HERE AT ISSUE ARE FACIALLY

UNCONSTITUTIONAL UNDER BRUEN
It is no great secret that no federal regulation of firearms existed before

the enactment of the laws here at issue. In addition to the previously raised

Constitutional questions, nothing in the applicable history and tradition of the

United States supports the categorical ban of machineguns, much less the item

here at issue—a tchotchke the Government alleges might possibly, with

transformative labor, one day become a machinegun. Further, the ATF’s

decision that the tchotchke at issue—a stainless steel card with some lines

lightly thereupon engraved—was a machinegun came completely by

administrative fiat, absent even notice and comment. Our Nation’s history and

tradition does not, and cannot, support a finding that an alleged drawing of a

part is that part merely because an unelected bureaucrat unilaterally willed it

to be. To hold otherwise would be to grant the Bureau more power than

Congress could have ever granted it, and make innumerable items potentially

illegal. See Bruen, 597 U.S. at *19-20 (“Like all analogical reasoning,

determining whether a historical regulation is a proper analogue for a

distinctly modern firearms regulation requires a determination of whether the

two regulations are “relatively similar.” . . . “Even though the Second

Amendment’s definition of ‘arms’ is fixed according to its historical

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understanding, that general definition covers modern instruments that

facilitate armed self-defense.”) (cleaned up) (internal citations removed).

As Bruen explained, historical analogues to a regulation can be helpful,

but Defendant here proffers more modern evidence that a categorical ban on

machineguns, as the Government here seeks to enforce against a bespoke

trinket, would be unconstitutional. We present the testimony of then-Attorney

General Cummings at a 1934 hearing on the National Firearms Act.

MR. LEWIS: I hope the courts will find no doubt on a subject like this,

General; but I was curious to know how we escaped that provision in the

Constitution.

ATTORNEY GENERAL CUMMINGS: Oh, we do not attempt to escape

it. We are dealing with another power, namely, the power of taxation,

and of regulation under the interstate commerce clause. 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. 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.

MR. LEWIS: In other words, it does not amount to prohibition, but allows

of regulation.
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ATTORNEY GENERAL CUMMINGS: That is the idea. We have studied

that very carefully.

National Firearms Act: Hearings before the Committee on Ways and Means,

House of Representatives on H.R. 9066, 73 Cong. 2d Sess. (1934). Defendant

posits that the then-Attorney General, advancing the very law whose

constitutionality was even then dubious, admitting that a categorical ban on

machineguns would present constitutional problems, is instructive that there

is no historical basis for the current regime—essentially reflecting what Mr.

Cummings describes as problematic—consistent with the Second Amendment.

d. THE LAWS HERE AT ISSUE ARE UNCONSTITUTIONAL

AS APPLIED TO DEFENDANT UNDER BRUEN
In the alternative to that advanced above, the application of §5861 and

§5871 is unconstitutional as it applies to Defendant. Even if the Government

could somehow prove to the Court that the wholesale felonization of the

peaceable possession of an entire category of arms to be consistent, this case

presents something far more peculiar: an administrative agency’s unilateral

declaration that an alleged drawing of a component—a component the

possession of which subjects the holder to lengthy prison terms—is the

component itself. There can be no historical justification, consistent with the

“unqualified command” of the Second Amendment, plus the clear metes of the

First, that could justify such a prosecution. Should any exist, the Government

bears the burden to prove it. Bruen at *15 (“Only then may a court conclude
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that the individual’s conduct falls outside the Second Amendment’s

‘unqualified command.’”); id. at *20 (“whether modern and historical

regulations impose a comparable burden on the right of armed self-defense and

whether that burden is comparably justified are ‘central’ considerations when

engaging in an analogical inquiry.) (cleaned up) (quoting McDonald v. Chicago,

561 U.S. 742 at 767 (2010)).

II. CONCLUSION
The command of the Second Amendment is clear. Under Bruen,

consistent with the text of the Constitution and the history and tradition of our

Great Nation, it stands to reason that any regulation affecting the peaceable

possession of arms—or in this case, something from which the Government

alleges an arm may one day be made from—warrants meaningful review. The

underlying laws have evaded meaningful scrutiny despite being

unprecedented in their severity, and the application thereof to Defendant

Hoover—a patriotic American and father who stands accused of talking about

a piece of metal with lines drawn on it and faces the complete destruction of

his life and livelihood therefrom—demonstrates the severity with which this

matter warrants meaningful constitutional review. The standard announced

in Bruen gives this Court the tools it needs to do so.

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WHEREFORE Defendant Matthew Raymond Hoover respectfully

moves this Honorable Court to dismiss the Indictment (ECF 57) against him

in its entity with prejudice, to declare the National Firearms Act facially

unconstitutional, or, in the alternative, unconstitutional as applied to

Defendant, and for any further relief that this Court deems just and proper.

DATED: July 1, 2022

___________________________ /s/Matthew Larosiere______

Zachary Z. Zermay, Esq. Matthew Larosiere, Esq.
1762 Windward Way 6964 Houlton Circle
Sanibel, FL 33957 Lake Worth, FL 33467
Email: [email protected] Email: [email protected]
Telephone: 239-699-3107 Telephone: 561-452-7575
Lead Counsel for Defendant Counsel for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 1, 2022 I electronically filed the

foregoing document with the Clerk of the Court using CM/ECF. I also certify
that the foregoing document is being served this day on all counsel of record
via transmission of Notices of Electronic Filing generated by CM/ECF.

________________________
Zachary Z. Zermay, Esq.