TAMPA, FL –-(Ammoland.com)- In the Autokey Card criminal court case, a Florida judge denied a motion to dismiss filed by Justin Ervin’s defense team.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) arrested Mr. Ervin for allegedly violating the National Firearms Act (NFA) of 1934. The Florida man was selling a thin piece of metal with an outline of a lightning link sketched onto its surface. He sold the item through his now-defunct website (autokeycard.com). A lightning link allows a gun owner to convert a semi-automatic AR-15 style sporting rifle into a fully automatic machine gun.
The ATF claimed that Ervin designed the item and intended the buyers to convert their firearms into machine guns using the Autokey Card. Prosecutors also claimed the Autokey Card was readily convertible into a lightning link using basic metalworking tools. The federal government declares that a user could cut out a lightning link’s basic shape from the metal card then bend the pieces into a working shape. The ATF believes people who purchased the card intend to convert their AR-15 rifles into automatic rifles.
The ATF views any device that a person designs to convert a gun into an automatic firearm as a machinegun itself.
This method is how the ATF reclassified bump stocks as machinegun after the Las Vegas shooting. The ATF has also banned other devices like a Yankee Boogle or the Portal Wall Hanger. They are also attempting to reclassify the Rare Breed FRT-15 as a machinegun.
Mr. Ervin claimed that the Autokey Card was nothing more than a novelty and a piece of art. Ervin’s defense team also claimed that the Autokey Card was protected under the First Amendment. Currently, there are no cases where anyone used an Autokey Card to convert a firearm into a machine gun.
The defense team for Mr. Ervin filed a motion to dismiss the criminal case on these Constitutional grounds. They claimed that the Autokey Card is not a machine gun, and Ervin did not design it to be a machine gun. They claim that the Autokey Card is protected art under the First Amendment. Mr. Ervin’s counsel also claimed that the ATF violated his freedom of expression. The judge denied the motion and stated that a jury would have to decide if the Autokey Card is a machine and if Ervin’s device is protected under the First Amendment.
Although this decision is disappointing to Ervin’s defenders, it is not a totally unexpected decision by the judge. Granting a motion to dismiss would be a summary judgment. Unfortunately for Mr. Ervin, the courts have decided that there are no summary judgment remedies in a federal criminal case. Case law tied the judge’s hands, and the judge’s decision is in line with prior court cases.
Mr. Ervin’s case is scheduled to start on April 11, 2022. The jury will decide whether Justin Ervin violated the NFA by selling machine guns or if Mr. Ervin was selling a piece of art that is protected under the First Amendment.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.