In case you get in any conversations around the water cooler about gun registration these days and you want to lob a conversational grenade, you can point out to your co-workers that the Supreme Court held in its' 1968 Haynes decision that felons could not be required to register firearms, as doing so would be a violation of their Fifth Amendment protections against self-incrimination.
That's usually good for some slack-jawed befuddlement. Lotta people don't know that.
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Oh that's hysterical!
ReplyDeleteHmm. So if New York State goes after all those Guns and "Magazine Clips" that they made Illegal through Legislative Fiat, does that mean several million Gun Owners qualify under Haynes?
ReplyDeleteAlso, that whole package smells like a "Bill of Attainder" to me. Article One, Section 9 of the Constitution says "No Bill of Attainder or Ex Post Facto Law shall be passed." Since the Citizens of New York who were obeying the Law and have already had a "Punishment System" built into it if they broke it are now being made Criminals Ex Post Facto.
Hope the SAF and the NRA grab on to those Arguments when they go to Court.
That IS water cooler fodder right there.
ReplyDeleteGreat Stuff Tam. I have this up over at my place with the obligatory "here's where I saw this" link. I've been reading your blog for a while now, really excellent work.
ReplyDelete"1968 Haynes decision that felons could not be required to register firearms, as doing so would be a violation of their Fifth Amendment protections against self-incrimination."
ReplyDeleteSo felons can't be required but none felons can? Snrk.
And since every American commits 3 felonies a day, I guess nobody can be made to register.
ReplyDeleteLes,
ReplyDeleteIt's a dilemma. Before the 14th Amendment, that "no ex-post-facto law" clause in the Constitution wouldn't have applied to the states. But since the 14th Amendment, a pretty good case can be (and often has been) made that state law is subject to the federal Constitution. So either it applies and the law is unconstitutional on its face, or it doesn't apply and all those new felons in New York can simply take the 5th when ordered to register or hand over their newly-proscribed weapons...
NO I didn't but I'm gonna use it... :-) THANK YOU!
ReplyDeleteThe Haynes decision was eventually overruled by a later SCOTUS decision.
ReplyDeleteWhich is too bad.
Don't use this in a serious argument. The feds can prosecute you these days for answering the 4473 incorrectly.
http://en.wikipedia.org/wiki/United_States_v._Freed
ReplyDeleteAfter the NFA was amended by the legislature, US vs Freed was the decision that reversed Haynes.
And in the Ohio case State v. Schutzler (1969), Schutzler attempted to use the Haynes decision to avoid prosecution for failing to register a submachine gun. But since he wasn't a felon, the courts upheld that he could be punished for failure to register since he was legally allowed to own the gun, and hadn't registered it.
ReplyDeleteSo the only purpose of registration is to create paperwork felons out of otherwise law-abiding citizens in order to prosecute them and take away their guns.
Everybody,
ReplyDeleteThat's not how "ex post facto" works. (Or "bill of attainder", for that matter...)
Kristopher,
"Don't use this in a serious argument."
I said "the Supreme Court held in its' 1968 Haynes decision that felons could not be required to register firearms." Are you saying that they did not?
;)
The ex post facto arguement doesn't apply because the ny law only applies if you possess a listed magazine after the effective date. The ny website seems to indicate it takes effect in 2014.
ReplyDelete"The feds can prosecute you these days for answering the 4473 incorrectly."
ReplyDeleteAnd if the Futts and the Fudds jam the Universal Background farce through, you'll be a felon the first undocumented P2P you do, then you'll have a choice of doubling down on the F's on the 4473 or never doing another B2P again.
The law of Unforeseen Consequences strikes again.
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ReplyDeleteRemoved your own comment? Must have been a doozy...
ReplyDeleteIs your shovel still named "Betsy"? Inquiring minds want to know.
ReplyDeleteYou've got this goofy idea that you're the only person here that thinks "universal background checks" are a bad idea.
What you don't understand is that the rest of us not only think that they're a BAD idea, but that they're also a DUMB idea. They won't catch any bad guys, and will only wind up entangling the occasional good guy.
Hey, here's a research project: Find us the details of someone who was prosecuted for violating the Evil Features provisions of the AWB and nothing else between '94 and '04.
Freed did not reverse Haynes. It clarified that while a felon cannot be equired to register a firearm, they can still be prosecuted for possessing an unregistered firearm.
ReplyDeleteSmall legal difference but huge in terms of how to prosecute: no for the act of failing to register, yes for the act of possessing an unregistered firearm.
So yes, the law is still that we cannot require a felon to register a gun (Haynes), but if we catch him with one he can either be prosecuted for possessing an unregistered arm or for being a prohibited person in possession of any firearm (Freed).
The other way to look at this is that only law-abiding persons not otherwise prohibited from possession can be forced to register their guns.
If you live in a jurisdiction that requires gun registration, and don't, are you then a fugitive from justice, and therefore a prohibited person under the GCA, and therefore not required to register your gun as it would be a violation of your right not to self-incriminate?
ReplyDeleteOr does that only work if the police are informed that there is someone in their jurisdiction that has not registered their firearms, a John or Jane Doe, for pseudonymous example, who will not identify themselves in order to not incriminate themselves, but are willing to inform the police that such a person has committed the offense and intends to hide in plain sight in their jurisdiction to avoid prosecution?
More like "Enquiring minds" in this context.
ReplyDeleteWhat you don't (won't) understand is that "entangling the occasional good guy" is exactly the plan. And the failure of the AWB to accomplish that is why it died.
Question: Did you actively buy and stash post-ban hardware and LEO mags or pre-ban stuff?
Timro asked: If you live in a jurisdiction that requires gun registration, and don't, are you then a fugitive from justice, and therefore a prohibited person under the GCA, and therefore not required to register your gun as it would be a violation of your right not to self-incriminate?
ReplyDeleteNo. You're violating the law, but you're not a fugitive.
A "fugitive from justice" is a specific term of legal art with a relatively inflexible meaning, that won't cover any of those things you want it to.
leBolide 1:53 "...the only purpose of registration (and a universal background check law) is to create paperwork felons out of otherwise law-abiding citizens in order to prosecute them and take away their guns."
ReplyDeleteSmartest thing anybody's said around here in a coupla days.
BAD idea? Yep. DUMB idea? Like a fox.
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ReplyDeleteKristophr:
ReplyDeleteFreed did not "overturn" Haynes.
There is a huge difference between Haynes and Freed, and it exists because of Haynes invalidating the basis of the NFA regsitration scheme, thereby forcing Congress to change how the NFA registration system works in order to reauthorize the NFA.
Prior to Haynes, you could (and generally did) register a weapon you already possessed -- so if you were a proscribed person, filing the registration paperwork meant you had to self-incriminate. Because you already had the gun. Since the offence was possessing an unregistered NFA "firearm", Haynes had a right not to be forced to self-incriminate. This borought down the original NFA registration scheme because of nonseveribility of key parts related to this violation of the right not to be forced to inciminate yourself.
Post-Haynes and the GCA, you submit the paperwork to "transfer AND register" before taking possession. Unlike the case from 1934 - 1968, you may no longer register a "contraband" NFA weapon. If you are denied, you are not yet in possession of an unregistered NFA item, thus you are not forced into admitting possession of an unregistered NFA "firearm". This is the schema in place that Freed was decided under.
Any law that prohibits possession of unregistered guns AND requires the registration of weapons already possessed runs smack-dab into Haynes, in that anyone already in possession when the law takes effect cannot register them after unregistered possession is illegal, because they would be forced to self-incriminate.
Of course, an amnesty period for registration, or starting the mandatory registration period long enough before unregistered possession takes effect that legal owners can register them, eliminates the Haynes defence for anyone who qualifies for legal gun possession under teh new registration scheme.
But it does nothing to fix the fact that someone who would never be permitted to register his gun in teh first place cannot be charged with unregistered possession under that law -- you would have to fnd another statute to charge him with (such as possession by a prohibited individual).
Geodkyte and Tam:
ReplyDeleteI should have been more clear.
The changes to the NFA post Haynes, and the US vs. Freed decision made whether or not a felon could be prosecuted for incorrectly answering a form 4473 irrelevant.
Said felon can be prosecuted for possession. The 4473 can be used as probable cause for possession, but felons can't be prosecuted for the false answers themselves on the 4473.
Kind of a nit-pick, since the felon can still be prosecuted for walking out the licensee's door with a firearm.
And yes, the 4473 is useless. They should just put the Brady Check confirmation number in the bound book and be done with it.
TL;DR Pawnbroker:
ReplyDelete"LalalalalalalalalalaIcan'thearyou!"
Obvious.
ReplyDeleteTalk about cute, though. :)
"...the only purpose of registration (and a universal background check law) is to create paperwork felons out of otherwise law-abiding citizens in order to prosecute them and take away their guns."
ReplyDeleteIf they make enough of us "felons" on paper, "felon" will lose it's meaning to everybody but Lawyers ..... Joe Sixpack will just say, "Shiny, let's all just be bad guys."
..... of course if the destruction of the Republic IS the goal, this is a great plan .....
I like pointing that out to people about the "duty to inform" laws.
ReplyDeleteYou can't require somebody who is carrying illegally to tell a cop "HEY, I GOTS ME A HEATER!!"
Right along with the fact that the 30.06 (no guns allowed) signs ONLY apply to CHL holders...there's a whole different law for carry without a license.
Has anyone actuallyy read the NY -SAFE act yet?? It admits there is no way to tell if a magazine is made before or after the act as they are not date stamped. As far as I can tell you can still own the metal boxes with a spring inside you just can't put more the 7 rounds in it.. 8 or more makes it a crime. Can any of you legal types verify this??
ReplyDeleteThat's why "Duty to inform" laws are generally bundled up with CCW, and consititute a violation of the terms of your government issued permission slip.
ReplyDeleteYou can HEAR the gears jam and crack when you point out that only law abiding citizens who voluntarily registered their carry status with the police (and thus are a very low threat to "officer safety", and that "officer safety" is the entire justification for "duty to inform" laws) are held to have a duty to inform; yet Ice Dog and Ray-Ray (lacking offical Totin' Chips, and a far, far greater threat to "officer safety") are Constitutionally protected from "duty to inform" laws!