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Registration & Licensing 5th Amendment, Self-Incrimination, & Gun Registration
NRA - ILA ^ | 9/3/1999 | Clayton E. Cramer

Posted on 05/09/2009 4:27:54 PM PDT by neverdem


·11250 Waples Mill Road ·   Fairfax, Virginia 22030    ·800-392-8683

 
Registration & Licensing
5th Amendment, Self-Incrimination, & Gun Registration
 
5th Amendment, Self-Incrimination, & Gun Registration

by Clayton E. Cramer

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. [1] 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." [2] The Court concluded:

  • We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under sec.5841 or for possession of an unregistered firearm under sec.5851. [3]

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. [4]

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:

  • Now, you say that it is easy for criminals to get weapons. I know it, but I want to make it easy to convict them when they have the weapons. That is the point of it. I do not expect criminals to comply with this law; I do not expect the underworld to be going around giving their fingerprints and getting permits to carry these weapons, but I want them to be in a position, when I find such a person, to convict him because he has not complied.

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. [5]

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:

  • that there existed an evil in the misuse of rifles and shotguns by criminals and persons not qualified to use these weapons and that the ease with which the weapons could be obtained was of concern... [6]

Yet on the subject of the Haynes decision:

  • In this court`s reading of the Haynes decision, it is inapposite to the statute under consideration here. The registration requirement in Haynes was "...directed principally at those persons who have obtained possession of a firearm without complying with the Act`s other requirements, and who therefore are immediately threatened by criminal prosecutions... They are unmistakably persons `inherently suspect of criminal activities.`"... The City of New York`s Gun Control Law is not aimed at persons inherently suspect of criminal activities. It is regulatory in nature. Accordingly, Haynes does not stand as authority for plaintiffs` position. [7]

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. [8] The plaintiffs attacked the law on a number of points, [9] 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. [10] 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. [11] 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. [12]

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 [13] -- 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.

Visit Clayton Cramer`s Home page.

 
Posted: 9/3/1999 12:00:00 AM
 


Find this item at: http://www.nraila.org/Issues/Articles/Read.aspx?id=22&issue=006


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: 5thamendment; banglist; gunregistration; haynes1968; nra; registration; selfincrimination; shallnotbeinfringed
Don't ask me. I just copied the source code.
1 posted on 05/09/2009 4:27:54 PM PDT by neverdem
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To: neverdem

Rep. Vinson was a good man. You’d think this would be more obvious, but it isn’t completely obvious to conservatives.

Good post.

May I ask you a question? ;-]


2 posted on 05/09/2009 4:47:29 PM PDT by 1010RD (First Do No Harm)
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To: 1010RD
May I ask you a question? ;-]

It depends on the question you ask. You can ask. Maybe I'll answer.

3 posted on 05/09/2009 4:56:40 PM PDT by neverdem (Xin loi minh oi)
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To: neverdem

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.)


4 posted on 05/09/2009 5:02:42 PM PDT by 1010RD (First Do No Harm)
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To: neverdem
It sounds paranoid to suggest that gun registration records might be used in the future to confiscate guns --

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.

5 posted on 05/09/2009 5:09:50 PM PDT by cayuga (We lost the soapbox to MSM bias, and the ballot box to ACORN. The cartridge box is all we have left.)
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To: neverdem

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.


6 posted on 05/09/2009 5:34:10 PM PDT by yefragetuwrabrumuy
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To: cayuga

Gun owners must understand that registration will lead to confiscation.

Deserves repeating.


7 posted on 05/09/2009 5:35:55 PM PDT by wrench
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To: cayuga
This is what is coming to the rest of the country.

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.

Life After Heller - More lawyers, more guns, some nunchuks, and the 14th Amendment

The chronolgy started in NYC in the 1960s. I never paid attention to this unConstitutional crap.

8 posted on 05/09/2009 5:53:30 PM PDT by neverdem (Xin loi minh oi)
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To: neverdem
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

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.

9 posted on 05/09/2009 6:29:21 PM PDT by Clint Williams (Read Roto-Reuters -- we're the spinmeisters | America -- a great idea, didn't last.)
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To: wrench
Gun owners must understand that registration will lead to confiscation.
Deserves repeating.

Been repeated, and ignored, so long the frog is now quite boiled.

10 posted on 05/09/2009 6:31:16 PM PDT by Clint Williams (Read Roto-Reuters -- we're the spinmeisters | America -- a great idea, didn't last.)
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To: harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; SLB; ..
Ping from El Mexico Norte, er, L.A.

Click the Gadsden flag for pro-gun resources!

11 posted on 05/09/2009 7:06:11 PM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: wrench

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.


12 posted on 05/09/2009 7:40:20 PM PDT by struggle ((The struggle continues))
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To: cayuga

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.


13 posted on 05/09/2009 7:45:25 PM PDT by SwedeBoy2
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To: neverdem
The chronolgy started in NYC in the 1960s.

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.

14 posted on 05/09/2009 8:06:31 PM PDT by cayuga (We lost the soapbox to MSM bias, and the ballot box to ACORN. The cartridge box is all we have left.)
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To: cayuga

NY gun laws started in the 30’.


15 posted on 05/09/2009 8:57:02 PM PDT by SuperLuminal (Where is another agitator for republicanism like Sam Adams when we need him?)
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To: cayuga
Whoops! Sullivan Act dates to the early 1900’s. Forgot....
16 posted on 05/09/2009 9:00:24 PM PDT by SuperLuminal (Where is another agitator for republicanism like Sam Adams when we need him?)
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To: SuperLuminal

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.


17 posted on 05/09/2009 9:17:22 PM PDT by Postman
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To: Postman
Yep! The Sullivan Act alone is the epitome of the failure of ALL gun laws. Almost a hundred years old and it's only effect is more and more crime.
18 posted on 05/09/2009 9:54:59 PM PDT by SuperLuminal (Where is another agitator for republicanism like Sam Adams when we need him?)
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To: wrench
The 2nd Amendment says "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

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!!

19 posted on 05/09/2009 10:53:50 PM PDT by prophetic (God, let 0Bama and his evil plans for this country fail & let him be utterly disgraced like HAMAN!!)
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To: 1010RD; wardaddy; Joe Brower; Cannoneer No. 4; Criminal Number 18F; Dan from Michigan; Eaker; ...
You just keep posting, OK?

Thanks for the compliment.

In case, you missed my link to Clayton Cramer's article, I posted it here. Here's his blog.

Rep Peter King Plots Terrorist Act (Allegations Sufficient For Punishment)

Why Does President Obama Hate the Polar Bears? Good News!

FCC attack on talkers beginning? 'I hope you will not hesitate to propose aggressive solutions'

Climb - Conservatives must have the courage to defend their convictions.

Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.

20 posted on 05/09/2009 10:58:03 PM PDT by neverdem (Xin loi minh oi)
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To: neverdem

Good links all Doc ~!

Thanks for the pings !


21 posted on 05/09/2009 11:13:10 PM PDT by Squantos (Be polite. Be professional. But have a plan to kill everyone you meet)
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To: Postman
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.

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.

22 posted on 05/10/2009 6:37:49 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Joe Brower

Wake Up America!

Be Ever Vigilant!


23 posted on 05/10/2009 7:00:12 AM PDT by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: neverdem

Thanks for the ping!


24 posted on 05/10/2009 8:54:29 AM PDT by Alamo-Girl
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To: neverdem; Abathar; Abcdefg; Abram; Abundy; akatel; albertp; AlexandriaDuke; Alexander Rubin; ...
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."



Libertarian ping! Click here to get added or here to be removed or post a message here!
25 posted on 05/10/2009 9:26:30 AM PDT by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: neverdem

Great post. Thanks.


26 posted on 05/10/2009 9:26:50 AM PDT by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: yefragetuwrabrumuy

money and power...end of story in any license or registration pursuits...


27 posted on 05/10/2009 5:16:09 PM PDT by Gilbo_3 ("JesusChrist 08"...Trust in the Lord......=...LiveFReeOr Die...)
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To: cayuga
This might help:

http://www.thegunzone.com/rkba/rkba-34.html

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.

28 posted on 05/11/2009 12:49:46 AM PDT by Drammach (Freedom - It's not just a job, It's an Adventure)
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To: bamahead; Landru

hey bamahead,

-please add Landru to the libertarian ping list.

thanks!


29 posted on 05/11/2009 10:22:20 AM PDT by FBD (My carbon footprint is bigger then yours)
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To: Drammach
Thank you for the link. It is very helpful.
30 posted on 05/11/2009 2:11:08 PM PDT by cayuga (We lost the soapbox to MSM bias, and the ballot box to ACORN. The cartridge box is all we have left.)
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