Explore The NRA Universe Of Websites

APPEARS IN News

5th Amendment, Self-Incrimination, & Gun Registration

Friday, September 3, 1999

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.
IN THIS ARTICLE
Registration & Licensing
TRENDING NOW

Saturday, April 21, 2018

Florida Alert: YETI Drops NRA Foundation

For years YETI Coolers have been a hot item for sportsmen at the Friends of NRA Foundation Banquet and Auction events around the country.  Suddenly, without prior notice, YETI has declined to do business with The ...

News  

Tuesday, April 24, 2018

ALERT ! YETI Adds Insult to Injury

If it wasn’t bad enough that YETI dropped The NRA Foundation as a client, now they’re calling us liars because we informed our members and friends of their actions.  

Dick’s Sporting Goods/Field & Stream to Destroy Firearms Inventory

News  

Second Amendment  

Friday, April 20, 2018

Dick’s Sporting Goods/Field & Stream to Destroy Firearms Inventory

Dick’s Sporting Goods took their campaign to alienate law-abiding gun owners to an extraordinary new level last week. The beleaguered retailer announced that in addition to removing certain types of semi-automatic rifles from their stores, the company ...

NRA Statement on Passage of the National Defense Authorization Act

News  

Tuesday, December 12, 2017

NRA Statement on Passage of the National Defense Authorization Act

National Rifle Association Institute for Legislative Action executive director, Chris W. Cox, released the following statement on Tuesday regarding President Donald Trump's signature on the National Defense Authorization Act

California: Legislation Requiring Background Checks on Barrels and Other Parts Up For Hearing!

Sunday, April 22, 2018

California: Legislation Requiring Background Checks on Barrels and Other Parts Up For Hearing!

Several pro- and anti-gun bills are scheduled to be heard in their respective committees on Monday, April 23 and Tuesday, April 24.  Please contact the members of the respective committee and urge them to SUPPORT ...

Another Group of Anti-Gun Celebrities Forms!  In Other News, The Sun Rose Today.

News  

Second Amendment  

Friday, April 20, 2018

Another Group of Anti-Gun Celebrities Forms! In Other News, The Sun Rose Today.

In case you were worried there were not enough anti-gun organizations working to eradicate the rights of law-abiding gun owners, a new one has formed, and it’s called NoRA.  Get it?  The name implies that the ...

Keep Calm and Carry On: Pro-Gun Sentiment Reasserts Itself in Wake of Antigun Blitz

News  

Second Amendment  

Friday, April 20, 2018

Keep Calm and Carry On: Pro-Gun Sentiment Reasserts Itself in Wake of Antigun Blitz

Like the long-delayed coming of spring to the Mid-Atlantic, evidence is appearing that Americans are regaining their senses and reverting to an instinctual embrace of freedom after a withering barrage of some the nastiest and most ugly ...

Illinois: Senate to Consider Overriding Veto on Dealer Licensing Bills

Monday, April 23, 2018

Illinois: Senate to Consider Overriding Veto on Dealer Licensing Bills

With the April 25th deadline approaching, the Illinois state Senate is expected soon to consider overriding Gov. Bruce Rauner’s veto on legislation that would drive your local gun stores out of business with onerous red tape ...

Minnesota: Two Anti-Gun Amendments to be Introduced and Considered Tomorrow

Wednesday, April 25, 2018

Minnesota: Two Anti-Gun Amendments to be Introduced and Considered Tomorrow

Tomorrow, anti-gun state Senator Ron Latz is expected to introduce two gun control amendments to the Senate Judiciary Omnibus finance bill on the Senate floor.

Delaware: Mandatory Gun Storage Legislation to be Heard in Committee Today

Wednesday, April 25, 2018

Delaware: Mandatory Gun Storage Legislation to be Heard in Committee Today

Today, the House Judiciary Committee is scheduled to consider anti-gun House Bill 366.

MORE TRENDING +
LESS TRENDING -
NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.