The great untold truth about gun registration.

[virginia mountainman]

Gun Registration....Those two terms together, always, bring the promise of being a “way to control guns”.... is nothing more than BULLSHIT..

Let me explain HOW, it is pure bullshit.

The”dirty secret” that that vile Repukes Sara Brady, Paul Helmke, and Micheal Bloomberg don't want you to know, is the FACT that criminals that are caught, with “unregistered guns” CANNOT, be prosecuted for having an unregistered firearm. This is a Fatal Flaw, in the law.

Yes, I said “CANNOT”.. It is long settled law, that a CRIMINAL does not need to register his gun, their will be NO consequences for them, if they DO NOT register their gun.

How, and Why? You gentle reader might ask. Easy... that falls under the 5th Amendment in the Bill of Rights, and the fact, that a felon, cannot, legally own a gun.

First off, the 5th Amendment highlight is mine..

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.'

Notice the underlined part..“nor shall be compelled in any criminal case, to be a witness against himself”

Now, lets talk about a Supreme Court decision re; U.S. v. Haynes (1968)

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:

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.


Now read that last paragraph again, and think about this for a moment...If you cannot charge a criminal for breaking laws regarding gun registration, WHO CAN YOU PROSECUTE for not registering their guns???

That is easy, someone who had no intent in breaking a law in the first place....the normally law abiding Joe Public, that was out of state, when renewals came up, or made a minor error in the paperwork...

[billyoc]

1. Well damn, that *is* ingenious.

[katandmoon]

2. Just get over your gun obsession and don't buy a goddamn gun in the first place - problem solved

[DesertFlower]

3. not everyone who owns a gun

has a "gun obsession". my husband and i own several handguns for personal protection.

[virginia mountainman]

4. jeeze, where did that come from?!?!

I was just stating the FACT, that a felon, cannot get into ANY trouble for not registering a firearm.

The ONLY people that can get into trouble for it, is those, that have not ever committed a felony, or do not intend to commit a felony.

[madeline_con]

6. You become the unarmed vicitm - problem solved? n/t

[SteveM]

10. Get over your corrupt and dishonest prohibitionism, and things would improve...

Is your viewpoint derived from a crimino-centric outlook and values?

[Callisto32]

11. I doubt God wastes damnation on inanimate objects with neither soul nor conscience.

[radioburning]

21. Wow. That was logical...n/t

[madeline_con]

5. Can't they be charged with possession of stolen property? n/t

[aspergris]

7. no, because

an unregistered gun is not (necessarily and often isn't) a stolen gun.

note that my state fwiw, does not require gun registration.

i have arrested dozens of felons though for possessing guns (which is illegal if they are a felon).

[virginia mountainman]

8. That's right! What allot of folks don't realize is;

Their is NO widespread gun registration in the US just a very few states, and crime ridden urban areas have it.

And in those jurisdictions in which their is gun registration, it does not change the fact, that when a felon is arrested, and found to have a gun in their possession, is enough to put them away for a very long time. Even tho they cannot be touched for not registering their guns.

But that does not mitigate the fact, that the ONLY folks that can "run afoul" of these poorly thought out registration schemes is the people that never intended to break the law in the first place. Because the moment, you deiced to commit a felony, gun registration laws, will no longer apply in any way too you.

This is long settled law, no prosecutor will even attempts to challenge it.

EDIT, their is national registration of class III weaponry, machine-guns, sawn of shotguns, artillery etc....But common arms, are NOT for the vast majority of Americans are not registered. and yes, that law, does not apply to criminals neither.

[jody]

9. And, sentences for possessing a firearm while committing a crime are often served concurrently with

other sentences making sentences for firearm crimes ineffective.

The result is gun-control laws punish law-abiding citizens and are ignored by criminals.

Why did the gun-control crowd change from loving law-abiding citizens and hating criminals to loving criminals and hating law-abiding citizens?

[iverglas]

12. can anybody say

stupid?

How's that breathalyzer thing work in the US?

Nobody may be required to blow, because a drunk behind the wheel would have to incriminate him/herself if s/he were required to blow?

How 'bout fingerprinting? Someone charged with an offence may not be required to submit to fingerprinting, because ... ?

I have really never read such an unspeakably stupid decision in my life. Seriously.

What yer fifth amendment actually says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Registration of a firearm is not "a criminal case". It is an administrative procedure.

Fucking duh.

[virginia mountainman]

13. Nothing you said, changes the facts..

That I stated in my original post.

[iverglas]

14. that's right

And nothing the Court said in that case changes the fact that it's a stupid decision, and a subsequent Court can make a different one.

"Lawrence" springs to mind on that point.

[virginia mountainman]

16. it was an 8 to 1 decision from the supreme court...

You can wish in one hand, and crap in the other, and see which gets filled first.

[TPaine7]

17. The decision was perfectly correct, eminently logical, and compelled by the Constitution.

It should have been unanimous.

The decision was by no means stupid, unlike iverglas' analysis of it.

[TPaine7]

15. I can.

I can also say superficial, disingenuous, intellectually dishonest, facile, and insulting to the intellect.

Just thinking about it as a layman, I can see a big difference between fingerprinting and witnessing against oneself. A fingerprint is a measure of a feature of one's body, like one's height, weight, blood type and eye color. Allowing authorities to measure these bodily characteristics is not testimony. And the authorities will gladly manipulate your fingers for you. You need not participate. Registering a weapon is obviously very different. Duh indeed.

Arguing that registration is not a criminal case but an administrative procedure is sophistry of the sort dreamed up by professionals--people paid to invent plausible lies. By this "logic", suspects could be required to testify against themselves in "administrative procedures" followed immediately by trials, during which the testimony could be used. Convenient? Absolutely. Constitutional? No way. Fortunately our Supreme Court is not quite that corrupt.

Googling "breathalyzer fifth amendment" yields an interesting hit on the first page.

According to the Supreme Court of Washington State:

As to the first requirement, we conclude that evidence of a defendant's
refusal to perform an FST is nontestimonial. Testimonial evidence is a
communication that "explicitly or implicitly, relate{s} a factual assertion
or disclose{s} information." Pennsylvania v. Muniz, 496 U.S. 582, 594, 110
S. Ct. 2638, 110 L. Ed. 2d 528 (1990) (quoting Doe v. United States, 487
U.S. 201, 210, 108 S. Ct. 2341, 101 L. Ed. 2d 184
(1998)). As noted above, the Fifth Amendment only protects testimonial
evidence.

Accordingly, an accused may not be compelled to reveal, either directly or
indirectly, "his knowledge of facts relating him to the offense or from
having to share his thoughts and beliefs with the Government." Id. at 595.
In contrast, the Fifth Amendment offers no protection against the
compulsion to provide blood samples, fingerprints, measurements, voice or
writing samples, "to appear in court, to stand, to assume a stance, to
walk, or to make a particular gesture." Schmerber, 384 U.S. at 764.
Nontestimonial evidence is unprotected by the Fifth Amendment.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=669988&invol=o01

Sounds a lot like what I wrote above before my search, doesn't it? And notice that the defendant was able to refuse the test. He could not have refused to be placed on a scale, have his height measured, blood drawn, etc... And very obviously, a felon can not be required to complete or sign a government form establishing that he possesses a gun in violation of federal law.

The difference between these things is easily and quickly seen by an intelligent layman; any lawyer worth her salt should see it immediately. So yes, I can say stupid.

[Real_Talk]

18. Nobody is required to take a breath test,

you just get your license suspended while prosecution is pending.

[AtheistCrusader]

19. This is correct in my state.

Nor is a breathalyzer required to convict. In fact, we had a bunch of convictions overturned because the idiot running the machine wasn't calibrating it properly, and falsified maintenance records. A woman I stopped near Bellevue was convicted on the weight of witness testimony alone.

[Real_Talk]

20. Time for an upgrade

The machines they use around these parts don't allow for much user error. The whole testing process consists of fitting a fresh mouthpiece and pressing a button asking the person to blow. The calibrations are done internally. It makes for some pretty impressive evidence.

[russ1943]

22. See United States v. Freed, 401 U.S. 601 (1971)

I recall a discussion about the circumstances you describe and Haynes quite a while ago on another "gun" board.
I'm not an attorney but one who participated in the discussion pretty much laid out a situation that described the scenario described in this OP as a bunch of NRA and gun enthusiasts bullshit.
The Haynes case is real, that is, it exists and it pointed out a problem with the law. As Paul Harvey used to say now for the rest of the story.

Congress amended the Act.

In April of 1971, (THIRTY SEVEN years ago) someone named Freed thought they could use the same defense as Haynes and escape prosecution by claiming protection from prosecution thru the Self-Incrimination Clause of the Fifth Amendment.

http://supreme.justia.com/us/401/601/case.html


In Haynes v. United States, 390 U. S. 85, the Court held invalid under the Self-Incrimination Clause of the Fifth Amendment provisions of the National Firearms Act, which constituted parts of an interrelated statutory scheme for taxing certain classes of firearms primarily used for unlawful purposes, and made the potentially incriminating information available to state and other officials. To eliminate the defects revealed by Haynes, Congress amended the Act so that only a possessor who lawfully makes, manufactures, or imports firearms can and must register them. The transferor must identify himself, describe the firearm, and give the name and address of the transferee, whose application must be supported by fingerprints and a photograph and a law enforcement official's certificate identifying them as those of the transferee and stating that the weapon is intended for lawful uses. Only after the transferor's receipt of the approved application form may the firearm transfer be legally made. A transferee does not and cannot register, though possession of an unregistered firearm is illegal. No information or evidence furnished under the Act can be used as evidence against a registrant or applicant "in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence," and no information filed is, as a matter of administration, disclosed to other federal, local, or state agencies. Appellees, who had been indicted under the amended Act for possessing and conspiring to possess unregistered hand grenades, filed motions to dismiss, which the District Court granted on the ground that the amended Act, like its predecessor, compels self-incrimination and that the indictment contravenes due process requirements by failing to allege scienter. Appellees also contend that the provisions relating to fingerprints and photographs will cause future incrimination.

Held:

1. The revised statutory scheme of the amended Act, which significantly alters the scheme presented in Haynes, does not involve any violation of the Self-Incrimination Clause of the Fifth Amendment.

2. The amended Act fully protects a person against incrimination for past or present violations, and creates no substantial hazards of future incrimination. P. 401 U. S. 606.

3. The amended Act's prohibition against a person's "receiv or possess a firearm which is not registered to him," requires no specific intent, and the absence of such a requirement in this essentially regulatory statute in the area of public safety does not violate due process requirements either as respects the substantive count or the conspiracy count. Pp. 401 U. S. 607-610.

Reversed.


IIRC that means the scenario described in the OP existed for a very short time and the revisions to the National Firearms Act Congress passed, for the specific purpose of eliminating the defects revealed in Haynes, were upheld by the USSC 37 years ago.

[TPaine7]

23. The Real "Rest of the Story" . . .

The case you cite is for the registration of a gun "only" by "a possessor who lawfully makes, manufactures, or imports firearms."

Congress amended the Act so that only a possessor who lawfully makes, manufactures, or imports firearms can and must register them.

Yes, I am aware of that. I doubt I am the only one here who is. It's irrelevant to the type of registration scheme being discussed.

If you recall correctly, the lawyer who "described the scenario described in this OP as a bunch of NRA and gun enthusiasts bullshit" owes you an apology.

You said:

IIRC that means the scenario described in the OP existed for a very short time and the revisions to the National Firearms Act Congress passed, for the specific purpose of eliminating the defects revealed in Haynes, were upheld by the USSC 37 years ago.

The act of Congress ruled on was amended, that is true. But there are other registration schemes--local ones--that have nothing to do with that law. Here's a very recent one, for example:

The D.C. Council is set to vote Tuesday on emergency legislation unveiled Monday that imposes strict controls on handguns and rules for registering firearms in the District....

Police will register one handgun per person for the first 90 days after the legislation becomes law, city officials said. A six-month amnesty period will be set up during which residents can register guns already in their possession.

Source: http://www.nbc4.com/politics/16876021/detail.html?rss=dc&psp=news

It is certainly not true of D.C. registration that "only a possessor who lawfully makes, manufactures, or imports firearms can and must register them", is it? What about New York? Chicago? San Francisco?

In D.C. and other jurisdictions, honest people must pay fees, get fingerprinted, and tell the authorities exactly what gun they own. It is still exactly as unconstitutional for those jurisdictions to require this of felons as it was the day the Haynes ruling first took affect. And if politicians ever get the nationwide gun registration they want (and you surely don't think they mean only newly manufactured or imported weapons, do you?!), felons--and only felons--will be exempt.

The lawyer you cite is the one who is spouting BS; the "gun enthusiasts" people who respect the Constitution are right.

[russ1943]

24. It's Haynes that is irrelevant,

The OP (here in July of 2008) presents the USSC ruling in Haynes as support or “proof” of “a Fatal Flaw, in the law”.
The flaw was corrected, Congress amended the Act.
The USSC subsequently ruled in Freed in 1971 the 5th amendment could not be used as protection from prosecution under the National Firearms Act.

The lawyer who described the scenario regarding gun enthusiasts using Haynes as support for this claim "as bunch of NRA and gun enthusiasts bullshit" is accurate and has already received my compliments.


Yes it is relevant, because the OP used it (Haynes) to support their claims that;
Registration is BULLSHIT (that particular claim isn’t a legal one, so there’s no disputing that opinion)
But;
The FACT is that criminals that are caught, with “unregistered guns” CANNOT, be prosecuted for having an unregistered firearm.
Criminals that are caught, with “unregistered guns” CANNOT, be prosecuted for having an unregistered firearm. This is a Fatal Flaw, in the law.
It is long settled law, that a CRIMINAL does not need to register his gun, their will be NO consequences for them, if they DO NOT register their gun.

(quoting from Haynes) "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."

Now read that last paragraph again, and think about this for a moment...If you cannot charge a criminal for breaking laws regarding gun registration, WHO CAN YOU PROSECUTE for not registering their guns???

That last paragraph refers specifically to two sections of the NFA prior to revision by congress, and of course prior to Heller.

It is Haynes that is irrelevant.

We all have read Heller by now and although that ruling in and of itself changes the legal landscape considerably it also provides some guidelines.
Scalia notes the Heller opinion doesn’t address licensing requirements but that simply means we’ll have to wait and see what kind of restrictions will be allowed as the inevitable plethora of cases wind their way through the legal system.
My opinion is, a registration requirement can be written that will be legal. We will have to wait and see.

[TPaine7]

25. One more time.

The OP is not speaking of "two sections of the NFA prior to revision by congress", it is talking about registration in general as a way to control guns in general (not just newly manufactured or imported ones). Those who believe in obeying the entire Constitution are not talking about the old NFA. Congress has, as you said, fixed the issue with the NFA.

You quote the OP and then say "That last paragraph refers specifically to two sections of the NFA prior to revision by congress"--accurate as far as it goes. Haynes did say

"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."

Do you think that this Supreme Court ruling applied only to sections 5841 and 5851 of the NFA?! Do you actually believe that another law could be passed by any division of US government that had the same effect and it would be constitutional?! Or do you think the OP is still applying the ruling only to the unmodified NFA?

When the Supreme Court rules that statute A is unconstitutional because provision B and provision C are unconstitutional, that means that no law, anywhere in the United States, is valid if it has the legal equivalent of provisions B or C in it. The ruling does not apply only to statute A. This is true even if the ruling says "we hold that statute A is invalid because provisions B and C are unconstitutional."

So the effect of Haynes is not limited to the NFA, nor do I read the OP to assume that it is. It applies to many other registration schemes as I pointed out in post 23.

That last paragraph refers specifically to two sections of the NFA prior to revision by congress, and of course prior to Heller.

Prior to Heller? Heller is irrelevant to this discussion. Haynes is a Fifth Amendment case--it does not turn on the right to bear arms. The logic of Haynes assumes that the defendant had no Second Amendment rights. So while it is true that Haynes was pre-Heller, that is about as relevant as the fact that Roe v. Wade or Lawrence were pre-Heller. It is true that the Court can reverse itself on any of these cases, but it will not be relevant to anything in the Heller case.

Scalia notes the Heller opinion doesn’t address licensing requirements but that simply means we’ll have to wait and see what kind of restrictions will be allowed as the inevitable plethora of cases wind their way through the legal system.
My opinion is, a registration requirement can be written that will be legal. We will have to wait and see.

Licensing and registration are not the same thing, hence the common term--"licensing and registration." Your point about waiting and seeing is, of course, accurate. I agree with you that legal registration requirements can probably be written, but unless the Court reverses itself on the Fifth Amendment, those registration requirements will still be deeply flawed. They may modestly impact the flow of new guns into criminal hands, but they will still be, in the words of the OP, bullshit:

1) They will not compel felons to do anything
2) They will burden honest folks and waste their time
3) They will form another barrier between Americans and their rights
4) They will not take "illegal guns off of our streets"
5) They will have no effect on existing guns in criminal hands
6) They will punish honest people for paperwork and technical errors