The Fifth Amendment, Self-Incrimination, and 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
In Haynes v. U.S. (1968), 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 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 can not 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. 
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 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. 
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
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
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