Skip to comments.Registration & Licensing 5th Amendment, Self-Incrimination, & Gun Registration
Posted on 05/09/2009 4:27:54 PM PDT by neverdem
|Registration & Licensing|
|5th Amendment, Self-Incrimination, & Gun Registration|
A recurring question that we are asked, not only by gun control advocates, but even by a number of gun owners is, "What`s wrong with mandatory gun registration?" Usually by the time we finish telling them about the Supreme Court decision U.S. v. Haynes (1968), they are laughing -- and they understand our objection to registration.
In Haynes, a Miles Edward Haynes appealed his conviction for unlawful possession of an unregistered short-barreled shotgun.  His argument was ingenious: since he was a convicted felon at the time he was arrested on the shotgun charge, he could not legally possess a firearm.
Haynes further argued that for a convicted felon to register a gun, especially a short-barreled shotgun, was effectively an announcement to the government that he was breaking the law. If he did register it, as 26 U.S.C. sec.5841 required, he was incriminating himself; but if he did not register it, the government would punish him for possessing an unregistered firearm -- a violation of 26 U.S.C. sec.5851. Consequently, his Fifth Amendment protection against self-incrimination ("No person...shall be compelled in any criminal case to be a witness against himself") was being violated -- he would be punished if he registered it, and punished if he did not register it. While the Court acknowledged that there were circumstances where a person might register such a weapon without having violated the prohibition on illegal possession or transfer, both the prosecution and the Court acknowledged such circumstances were "uncommon."  The Court concluded:
This 8-1 decision (with only Chief Justice Earl Warren dissenting) is, depending on your view of the Fifth Amendment, either a courageous application of the intent of the self-incrimination clause, or evidence that the Supreme Court had engaged in reductio ad absurdum of the Fifth Amendment. Under this ruling, a person illegally possessing a firearm, under either federal or state law, could not be punished for failing to register it. 
Consider a law that requires registration of firearms: a convicted felon cannot be convicted for failing to register a gun, because it is illegal under Federal law for a felon to possess a firearm; but a person who can legally own a gun, and fails to register it, can be punished. In short, the person at whom, one presumes, such a registration law is aimed, is the one who cannot be punished, and yet the person at whom such a registration law is not principally aimed (i.e., the law-abiding person) can be punished.
This is especially absurd for the statute under which Haynes was tried -- the National Firearms Act of 1934. This law was originally passed during the Depression, when heavily armed desperadoes roamed the nation, robbing banks and engaging in kidnap for ransom. The original intent of the National Firearms Act was to provide a method for locking up ex-cons that the government was unable to convict for breaking any other law. As Attorney General Homer Cummings described the purpose of the law, when testifying before Congress:
During the same questioning, Cummings expressed his belief that, "I have no fear of the law-abiding citizen getting into trouble." Rep. Fred Vinson of Kentucky, while agreeing with Cummings` desire to have an additional tool for locking up gangsters, pointed out that many laws that sounded like good ideas when passed, were sometimes found "in the coolness and calmness of retrospect" to be somewhat different in their consequences. 
Unfortunately, Rep. Vinson`s concern about law-abiding people running afoul of registration laws, while criminals run free, turned out to be prophetic. The same year as the Haynes decision, the New York City Gun Control Law was challenged in the courts. The statute sought to bring shotguns and rifles under the same sort of licensing restrictions as handguns. Edward Grimm and a number of others filed suit against the City of New York, seeking to overturn the city ordinance. Grimm, et. al., raised a number of objections to the law during the trial, most of which were based on the Second Amendment. After the trial, but before the decision had been completed, the Haynes decision appeared. Grimm`s attorneys pointed out the implications for New York City`s gun registration requirement. The trial court held that the legislative intent of the law was:
Yet on the subject of the Haynes decision:
In three pages, the court went from claiming that the registration law was intended to stop "an evil in the misuse of rifles and shotguns by criminals" to admitting that it was "not aimed at persons inherently suspect of criminal activities."
Nor is Grimm an exceptional case. A number of other judicial decisions have upheld gun registration laws, specifically because they did not apply to criminals, but only to law-abiding citizens. During the turbulent late 1960s, Toledo, Ohio, passed an ordinance that required handgun owners to obtain an identification card.  The plaintiffs attacked the law on a number of points,  including the issue of self-incrimination. Regarding the Fifth Amendment, the Court of Common Pleas asserted that application for a handgun owner`s identification card (effectively, registration of gun owners) did not make a person "inherently suspect of criminal activities." (This quotation suggests the judge writing this opinion was aware of the Haynes decision, although not cited.) The court pointed out that unless the plaintiffs had been prohibited persons within the Toledo ordinance, the Fifth Amendment would have provided them no protection. Only criminals were protected from a mandatory registration law -- not law-abiding people.
Later that same year, in the Ohio case State v. Schutzler (1969), Gale Leroy Schutzler attempted to quash an indictment for failure to register a submachine gun in accordance with O.R.C. sec.2923.04, which required registration of automatic weapons.  At the original trial, Schutzler argued that the registration requirement violated his Fifth Amendment rights, based on Haynes. On appeal, the Court of Common Pleas did not agree with any of Schutzler`s arguments, including his citation of the Fifth Amendment. Where the Haynes decision was based on the fact that Haynes was an ex-felon, and therefore his possession of a sawed-off shotgun was illegal, Schutzler was not breaking the law by possession; his only violation of the law was his failure to register the submachine gun and post a $5000 bond.  Had he been an ex-felon, the Haynes decision would have protected him. Because he was not a convicted criminal, he did not receive the benefit of the Fifth Amendment`s protection.
In State v. Hamlin (1986), a case involving an unregistered short-barreled shotgun, the Louisiana Supreme Court refused to apply the Haynes precedent, because the Louisiana statute specifically prohibited the government from using registration information to prosecute convicted felons in possession of a firearm. The Louisiana registration law had been "sanitized" in a manner similar to the 1968 revision to the National Firearms Act, 26 U.S.C. sec.5801, which required that no information obtained from gun registration could be used against a person who could not legally possess a gun -- convicted felons could register their machine guns or short-barreled shotguns with complete confidence that they would not be prosecuted for illegal possession. 
If mandatory gun registration can`t be used to punish ex-felons in possession of a firearm, what purpose does such a law serve? If mandatory gun registration can only be used to punish people that can legally possess a gun, why bother? Because of the Haynes decision, if we want to punish ex-felons who are caught in possession of a gun, there are only two choices available: We must either skip registration, so that we can severely punish gun possession by those who aren`t allowed to own guns; or use the "sanitized" form of registration law -- where the criminal is guaranteed that gun registration can`t hurt him, while the rest of us can be punished for failure to comply.
It sounds paranoid to suggest that gun registration records might be used in the future to confiscate guns -- although the second director of Handgun Control, Inc. has stated explicitly that mandatory registration is one of the steps towards prohibition of handgun ownership  -- but when we examine how the courts have crippled gun registration laws so that felons are effectively exempt, and only law-abiding citizens need to fear such laws, what other explanation can there be for the continuing plea for mandatory gun registration?
Clayton E. Cramer is a software engineer with a telecommunications manufacturer in Northern California. His first book, By The Dim And Flaring Lamps: The Civil War Diary of Samuel McIlvaine, was published in 1990. Rhonda L. Cramer is completing her B.A. in English.
1. Haynes v. U.S., 390 U.S. 85, 88, 88 S.Ct. 722, 725 (1968).
2. Haynes v. U.S., 390 U.S. 85, 96, 88 S.Ct. 722, 730 (1968).
3. Haynes v. U.S., 390 U.S. 85, 100, 88 S.Ct. 722, 732 (1968).
4. Haynes v. U.S., 390 U.S. 85, 98, 88 S.Ct. 722, 730 (1968).
5. National Firearms Act: Hearings Before the Committee on Ways and Means, 73rd Cong., 2nd sess., (Washington, DC, Government Printing Office: 1934), 21-22.
6. Grimm v. City of New York, 56 Misc.2d 525, 289 N.Y.S.2d 358, 361 (1968)
7. Grimm v. City of New York, 56 Misc.2d 525, 289 N.Y.S.2d 358, 364 (1968)
8. Photos v. City of Toledo, 19 Ohio Misc. 147, 250 N.E.2d 916 (Ct.Comm.Pleas 1969).
9. Photos v. City of Toledo, 19 Ohio Misc. 147, 250 N.E.2d 916, 923 (Ct.Comm.Pleas 1969).
10. State v. Schutzler, 249 N.E.2d 549 (Ohio Ct.Comm.Pleas 1969).
11. State v. Schutzler, 249 N.E.2d 549, 552 (Ohio Ct.Comm.Pleas 1969).
12. State v. Hamlin, 497 So.2d 1369, 1372 (La. 1986).
13. Richard Harris, "A Reporter At Large: Handguns", The New Yorker, July, 26, 1976, 57-58. A fascinating interview, Shields also describes the founder of Handgun Control, Inc., as a "retired CIA official" who was its first director -- without pay. For those people who regard the CIA as a secret government with nefarious motives, this will doubtless make them wonder about the origins of Handgun Control`s current policies in support of prohibition of those rifles which are most necessary to restrain domestic tyranny.
|Posted: 9/3/1999 12:00:00 AM|
Rep. Vinson was a good man. You’d think this would be more obvious, but it isn’t completely obvious to conservatives.
May I ask you a question? ;-]
It depends on the question you ask. You can ask. Maybe I'll answer.
You just keep posting, OK?
(In this case OK is just a statement, not a real question, unless you don’t want to keep posting in which case that is OK, too.)
Would somebody, please, post the chronology of gun registration in NYC?
I don't remember the details, but it started with a minimal fee, and was supposed to help police track the source of recovered crime weapons.
The fees were later raised to provide revenue, and discourage gun ownership.
Eventually, when the politicians decided to ban certain guns (like "assault weapons") they reqired that the weapons be turned-in or removed from the city. They knew where the guns were, and went looking for them.
I'd like the chronology of this----when it started, when it progressed, how the fees increased, what guns were banned.
This is what is coming to the rest of the country.
Gun owners must understand that registration will lead to confiscation.
Gun registration is not just wrong, but it should actually make us question the underlying assumptions about other forms of registration and licensing as well.
While this is not often done, it makes particular sense to those opposed to gun registration. If not at first, then perhaps after you think about it.
Why do citizens need to be licensed to drive a registered automobile?
Most people automatically assume “public safety”, but that may not actually be the case.
The State of Florida recently reached a quandary. Almost half a million Florida drivers drive without a valid driver’s license. So many, in fact, that the State police have given up worrying about it. They are far more concerned with stopping bad drivers than worrying about a piece of paper.
That is, there doesn’t seem to be any relationship between licenses and driving ability.
Most people then say, “But what about using a driver’s license as a form of ID?” Well, that’s not the purpose of a driver’s license, but it is how they are used, most of the time. But that is the purpose of a State ID card.
A State ID card, as well as a driver’s license, that can be used as a National ID card, has long be a dream of authoritarian government officials and lazy bureaucrats. And even many of the States have figured out that *that* is an awful idea, and want no part of it for their citizens.
Only when we start questioning assumptions like these, do we start to see the real fallacies behind gun registration and licensing. If gun registration serves no valid purpose, and it doesn’t, than to heck with it. And if gun licensing serves no valid purpose either, and it doesn’t, than to heck with it as well.
Because, the argument is the same for gun licensing as it is for driver’s licensing: “public safety”. And in either case, if unexamined, it seems reasonable enough on the surface.
Gun owners must understand that registration will lead to confiscation.
Not after Heller. The Ninth Circuit incorporated the Second Amendment in the Nordyke Decision as an individual right. This will be seen by the Supreme Court next session, IIRC. You don't pay for a right. These laws are going the way of the poll tax.
The chronolgy started in NYC in the 1960s. I never paid attention to this unConstitutional crap.
Once you start infringing on a right without due process you might as well kiss that right goodbye, because it no longer has anything like a firm foundation.
America -- a great idea, didn't last.
Been repeated, and ignored, so long the frog is now quite boiled.
It happened in the UK.
Will it happen here?
Will Obama sacrifice some ACORN employees to make it happen?
It’s either Bubba or ‘Bama.
Not at all Paranoid to think that Registration precedes Confiscation.
In California. SKS registration then Confiscation.
WWII. In Norway. Registration by Norwegians then Confiscation by the Nazis.
Even in the Movie “RED DAWN” The order was given to go to all of the sporting goods stores and get the BATF Forms # 4473,
So they would know where to find the Guns.
I know. I lived in western New York until 1977.
The progression in NYC was a classic example of the frog in the pot. I'm trying to pin down the timetable of the repression, sort of like a Time vs. Temperature plot for the frog.
I'll try the NRA for a timetable of NYC gun laws.
NY gun laws started in the 30’.
I understand that the powers that controlled NYC politics wanted gun controls to keep weapons out of the hands of all those low class, no account foreigners who were immigrating to the US and then it just sort of got out of hand.
I hold to the opinions that 1) too many of our gun rights has already been eroded and 2) registration has and will always be a Trojan horse leading to confiscation.
Too many crafty politicians and stupid citizens are too LAZY to read those famous last words SHALL NOT BE INFRINGED!!
Thanks for the compliment.
In case, you missed my link to Clayton Cramer's article, I posted it here. Here's his blog.
Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.
Good links all Doc ~!
Thanks for the pings !
Yep. Just as gun control in the south was aimed at keeping guns out of the hands of those uppity freed negros.
All gun control is aimed at disarming those groups who must be kept down. These days, that means citizens.
Wake Up America!
Be Ever Vigilant!
Thanks for the ping!
Great post. Thanks.
money and power...end of story in any license or registration pursuits...
That was the only link I could find that seemed to deal specifically with New York City Gun Law and it's history.
You might find something in John Lott's "More Guns Less Crime" as well.
Just a thought, but you could try e-mailing Mr. Lott, and explain your interest.
He may just be kind enough to help you out with all the information you need.
-please add Landru to the libertarian ping list.